In Re: Shri 'M', An Advocate Of The... vs Unknown

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 17 October, 1956

Coram: Jagannadhadas, J.

In this case, the Court observed that the present proceedings stemmed from a summons issued under Order IV, rule 30 of the Supreme Court Rules, 1950 as amended, and that the summons was directed to Shri M. The Court noted that Shri M had originally served as an Agent of the Supreme Court and, following the commencement of the new Rules of this Court on 26 January 1954, had become an “Advocate on record.” The summons required Shri M to show cause why disciplinary action should not be taken against him. The summons was issued in response to a complaint lodged with the Registrar of the Court by a certain Attar Singh on 5 December 1955. The complaint concerned the conduct of Shri M in connection with Criminal Appeal No. 12 of 1950, in which Attar Singh was the appellant. Shri M had acted as counsel for the appellant in that appeal. According to the complaint, a sum of rupees 750 was handed to Shri M to meet the printing charges associated with the appeal. That amount was subsequently deposited, in due course, with the Punjab High Court, the court from which the judgment on which the Supreme Court appeal was based had been rendered. After the deposit, a balance of rupees 242-1-9 remained unspent. The complaint alleged that Shri M withdrew the unspent balance from the Punjab High Court without the appellant’s authority or knowledge. When the appellant later discovered the withdrawal, he demanded that the amount be returned. Shri M initially denied having received the money and thereafter refused to refund it, asserting, as later evidence would show, that he had applied the amount toward fees that he claimed were due to him. The Court explained that the complaint was presented in the ordinary course of business before the Chief Justice, who directed the Chamber-Judge, learned brother Bhagwati J., to conduct an enquiry into the matter. Notices were consequently issued to Shri M, to the complainant, and to three other advocates of this Court who had been involved in the same appeal. The enquiry before the learned Judge was described as fairly elaborate, and on the basis of its findings certain conclusions were drawn, leading to the framing of charges against Shri M. The present summons to Shri M was issued in reference to those charges, and the Court constituted a Special Bench under Order IV, rule 30 of the Supreme Court Rules to consider the matter. The learned Attorney-General appeared, having been given notice, to assist the Court. The Court further observed that the Rules of this Court do not contain a specific procedure for dealing with such disciplinary matters, except for the provision that “the Court shall issue, in the first instance, a summons returnable before the Court or before a Special Bench to be constituted by the Chief Justice to show cause against specified matters.” The Court noted that, to date, no precedent existed in this Court indicating the precise procedure to be followed. The only earlier instance of professional misconduct addressed by a summons under Order IV was referenced, but the passage ends at that point.

The Court noted that the only earlier decision interpreting rule thirty of the Supreme Court Rules was reported in the case In the matter of Mr G, a Senior Advocate of the Supreme Court. That case concerned an action taken by the Bombay High Court against the advocate for alleged misconduct within the High Court’s jurisdiction. The summons issued by this Court in that matter related to the same conduct but addressed the advocate’s position as a member of the Supreme Court bar. The Court was also informed that two similar proceedings had been dealt with by the former Federal Court, though no detailed reports were provided. Normally, given the thorough enquiry conducted earlier by the learned Judge Bhagwati J., the Court would have limited the present hearing to arguments based on that record. The Court would then have drawn its own conclusions on the charges set out in the original summons. However, at the outset counsel raised objections to adopting that approach, questioning the validity of the summons itself. It was submitted that under Order Four, rule thirty, a summons must be the first step before any enquiry can commence. Further, it was pointed out that the earlier enquiry had been held in Chambers and the witness statements had not been administered on oath. The learned Attorney-General also expressed the view that the objections possessed some merit. After hearing arguments from counsel on both sides, the Court decided to postpone any ruling on the preliminary objection. Instead, the Court granted the accused Agent an opportunity to undergo a fresh enquiry in open Court on properly formulated charges. Consequently, by orders dated 9 May 1956 and 13 September 1956, the Court directed that new evidence be taken before it. The Court also ordered that the procedure should, as far as possible, follow that of a warrant case under the amended section 251-A of the Criminal Procedure Code. Any modifications required to achieve justice and to preserve the rules of natural justice were to be made at the Court’s discretion. The earlier Chamber enquiry was treated as a preliminary step, and arguments on both sides were heard with reference to its material. Having considered that material, the Court concluded that the matter did not merit discharge at that stage. Accordingly, the Court revised the charges originally framed by Judge Bhagwati J. and added an additional charge. No objection was raised to this modification of the charges. The Court further observed that Order Four, rule thirty does not prevent it from reframing or adding charges where the preliminary enquiry material justifies such changes. The fresh open-court enquiry therefore proceeded on the basis of the revised charges and the newly added charge.

In this matter, the Court found that the respondent advocate, who had previously acted as an Agent of the Court and later as an Advocate on record, had engaged in professional misconduct on three grounds. First, the respondent had deposited Rs 750 in the Punjab High Court on behalf of his client, Attar Singh, to cover the printing costs of the appeal book in Supreme Court Appeal No 12 of 1950, and had retained the receipt issued by the High Court. Despite lacking the authority of Attar Singh, the respondent subsequently applied to the High Court in March 1952 and obtained the unspent balance of Rs 242-1-9. Second, after receiving that balance, the respondent kept the entire amount and failed to return any part to Attor Singh, even though the client repeatedly requested the return. The respondent was not entitled to recover from the client more than Rs 72-15-6, having agreed to accept a fee of only Rs 100. Third, the respondent retained the sum of Rs 242-1-9 for more than three years without informing the client, without claiming any portion as professional fees, and without filing a bill for taxation against the client. The undisputed facts established that Attar Singh had engaged a senior advocate of the Court, who in turn associated a junior advocate and the respondent as Agent for the case. All three filed Criminal Appeal No 12 of 1950 based on a Vakalatnama executed by Attar Singh in favor of the respondent. The client was required to deposit Rs 750 in the Punjab High Court for preparation of the printed record; the respondent was entrusted with a bank draft for that sum, which he deposited, and a receipt was issued in his name. The printed record was prepared and sent to the Supreme Court by the end of December 1951. Subsequently, the respondent applied to the High Court for a refund of the unspent balance and received Rs 242-1-9 in March 1952, which he failed to remit to Attar Singh, claiming it as his own fee. When the appeal was filed, Attar Singh was financially destitute because he had lost his employment following his conviction. He approached the senior advocate through a relative and requested that the senior advocate arrange the conduct of the appeal, accept a fee of Rs 600, and also appoint a junior advocate and an Agent, with the total amount of Rs 600 to be shared among them. The client alleged that the senior advocate paid himself Rs 600 before the appeal was filed and that the client was not involved in the distribution of that sum among the senior advocate, the junior advocate, and the Agent. Consequently, the client asserted that the respondent was not entitled to any additional fee and that he had improperly withdrawn and appropriated the balance for alleged fees.

In this case, the complainant approached the senior advocate through a known associate and asked him to conduct the appeal on his behalf. He proposed that the senior advocate would receive a total fee of six hundred rupees, which would also cover the fees of a junior advocate and an agent. The complainant alleged that the senior advocate accepted this proposal and was paid the full six hundred rupees a few days before the memorandum of appeal was filed in this Court. He claimed that he, the complainant, was not involved in selecting the junior advocate or the agent, nor in distributing the six hundred rupees among the three persons. Accordingly, the complainant argued that the agent, Shri ‘M’, was not entitled to receive any amount beyond the one hundred rupees that had been agreed as his fee, and that the agent had improperly withdrawn additional funds and treated them as fees. The complainant, Attar Singh, gave evidence in support of his version. The senior advocate and the junior advocate were also examined to corroborate the complainant’s account. The senior advocate testified that he was approached by Attar Singh through a mutual friend and that he was asked to accept a consolidated fee of six hundred rupees. He stated that, after consulting with the junior advocate, whom he knew well, he agreed to take the engagement. He said that the junior advocate introduced Shri ‘M’ as the agent, and that the six hundred rupees paid by Attar Singh were divided as three hundred rupees to the senior advocate, two hundred rupees to the junior advocate, and one hundred rupees to the agent. He further explained that he did not know the agent previously; the junior advocate had selected the agent and had informed him that the agent had consented to receive only one hundred rupees as his fee. In accordance with that arrangement, the senior advocate said, the one hundred rupees were handed over to the agent and two hundred rupees to the junior advocate. The junior advocate also testified that he had appointed Shri ‘M’ as the agent in the appeal, with the understanding that the agent’s fee would be limited to one hundred rupees. All three witnesses – the complainant, the senior advocate, and the junior advocate – agreed that these events occurred a few days before the appeal was filed. The appeal was, in fact, filed on 11 May 1950. The agent, Shri ‘M’, appeared as a witness on his own behalf. He acknowledged that he had been appointed as the agent in the appeal through the junior advocate at the request of the senior advocate, but he stated that he was unaware of any agreement between the complainant and the senior advocate, nor of any payment of six hundred rupees by the complainant to the senior advocate under the alleged arrangement.

Shri ‘M’ testified that he was taken on as an Agent in the appeal at the suggestion of Sardar Raghbir Singh, following the recommendation of Shri Madan. He stated that at the time the appeal was filed he received only Rs 50 from Attar Singh, which he described as a part-payment of his fees, and that he had been promised that a reasonable balance would be paid later. Shri ‘M’ expressly denied any understanding or agreement that his total remuneration for the case would be limited to Rs 100, and he also rejected the allegation that Sardar Raghbir Singh had handed him Rs 100. To counter the claim of a Rs 100 arrangement, Shri ‘M’ produced evidence that in August 1952 the junior advocate, Shri Madan, had sent him a bill for Rs 320, which he said he forwarded to Attar Singh and of which he intended to produce a copy. However, Shri Madan denied ever having sent such a bill, and Attar Singh denied receiving any such bill. The dispute concerning this aspect of the case is captured by charge number two, and it hinges on two material facts: first, whether Shri ‘M’ entered the case under a definite arrangement that his entire fee would be Rs 100; and second, whether Sardar Raghbir Singh actually paid him that amount at the outset. The complainant, Attar Singh, was not a direct witness to either the alleged arrangement or the purported payment of Rs 100; his testimony was limited to the agreement he had with Sardar Raghbir Singh. Attar Singh explained that he would appoint a junior advocate and an Agent of his own choosing, and that the three of them together would receive a combined fee of Rs 600, without seeking any additional compensation. He further affirmed that he had paid the full Rs 600 to Sardar Raghbir Singh at the very beginning of the proceedings. Sardar Raghbir Singh admitted that he had received the Rs 600 from Attar Singh. There is no reason to doubt that this payment was made a few days before the appeal was filed in May 1950, although Shri ‘M’ denied any knowledge of the transaction. On the evidence before the Court, Shri Madan emerges as the sole direct witness to the arrangement that stipulated a payment of Rs 100 to Shri ‘M’ and that he should not claim any further remuneration for handling the entire case. The arrangement itself was not made in the presence of Sardar Raghbir Singh; however, Sardar Raghbir Singh testified that he had been informed of it by Shri Madan. Moreover, Sardar Raghbir Singh asserted that, in accordance with that arrangement, he had paid Shri ‘M’ the sum of Rs 100. Consequently, based on the testimony presented, Shri Madan is regarded as the direct witness to the fee-sharing agreement, while Sardar Raghbir Singh is the direct witness to the actual disbursement of the agreed amount.

Shri Madan was identified as the direct witness to the arrangement concerning the payment, while Sardar Raghbir Singh was identified as the direct witness to the actual disbursement of the money; each of them became aware of the other’s involvement through their conversations at the relevant time and during the subsequent course of events. The evidence presented by both of these gentlemen was examined and criticised by the counsel representing Shri 'M'. It was observed that the two witnesses had been called upon to address the facts on three distinct occasions during these proceedings. The first occasion occurred when each of them responded in writing to letters of enquiry issued by the Registrar of the Court after the complaint had been filed and after Shri 'M' had filed his answer to that complaint. The second occasion arose when they were examined formally by the learned Judge in chambers. The third occasion is their present examination on oath before the Court.

The counsel for Shri 'M' highlighted that the testimonies of the two witnesses displayed substantial variations and developments when compared across the three stages. Both witnesses explained that, at the earlier stages, they had refrained from providing more specific or categorical statements because they understood that the matter might be adjusted, they wished to avoid harming Shri 'M', and because the parameters for answering the Registrar’s enquiry had been discussed in a conference that included themselves, Shri 'M' and his advocates. Shri 'M' conceded that such a conference had indeed taken place. The counsel for Shri 'M' therefore argued that the explanation offered by the two witnesses demonstrated that their statements, even before this Court, should not be accepted at face value.

The counsel for the respondent also pointed out that neither of the two witnesses was able to produce any account books or other documentary evidence to substantiate the alleged payments, nor could they produce any record indicating the fee amounts fixed for each participant or the terms of the arrangement with Shri 'M'. Both witnesses admitted that they kept no accounts at all, and it does not appear that they maintained any satisfactory diaries or other records that might have corroborated their testimony.

The learned Attorney-General, while acknowledging that there is considerable scope for comment on the evidence of the two witnesses, urged the Court to place greater weight on their present evidence given under oath. He emphasized that both witnesses admitted the complainant’s version that a sum of Rs 600 was intended to cover the work of all three parties, and that they categorically affirmed that they themselves had no further claim against the complainant for the work performed. The Attorney-General submitted that it would be unreasonable to assume that, although both of them accepted comparatively small fees for the entire case, the agent Shri 'M' was promised a “reasonable fee” without any fixed amount. He further noted that, on his own admission, Shri 'M' could point to no entries in any diaries or registers said to have been kept by him for his cases that might substantiate his version of events.

Concerning the allegation that the agent, Shri M, had arranged to receive only one hundred rupees as full remuneration for the entire case, the counsel argued that, in view of the probability of the surrounding circumstances and the evidence on record, the Court should accept not merely that such an arrangement existed but also that the sum of one hundred rupees was in fact paid to him. After a thorough consideration of all the material presented on this point, the Court held that it could not arrive at a definitive conclusion on the disputed facts that form the core of this issue. The Court expressed that it was not satisfied with the quality of the evidence placed before it by either side relating to this matter. Consequently, the Court declined to record a categorical finding that might, if adverse to Shri M, amount to a finding of criminal misappropriation. Instead, the Court chose to dispose of the case by giving Shri M, for the purposes of these proceedings, the benefit of the doubt with respect to the facts that are material to this issue, thereby resolving the matter in his favour without a definitive adjudication on the contested points.

The second matter, arising under charge No 1, concerns whether Shri M possessed the necessary authority to withdraw the unspent balance from the Punjab High Court. Shri M relied on two sources of alleged authority: first, a specific oral authority that he claimed was given to him by the relation—or “pairokar”—of the complainant, Attar Singh, who had previously approached him in connection with the appeal; and second, an implied authority derived from the wording of a Vakalatnama executed in his favour by Attar Singh. The only evidence offered in support of the specific oral authority was Shri M’s sole sworn statement before the Court. In that statement he asserted that he had been authorised by the relation of Attar Singh to withdraw the unspent balance, but he was unable to provide the name of that relation and said that he was seated in Court while giving his evidence. The alleged relation or pairokar has not been examined as a defence witness. In the proceedings before the learned brother, Bhagwati J., Shri M’s version on this point appears in paragraph 8 of his affidavit dated 5 March 1956, wherein he wrote: “I requested Attar Singh to remit funds for prosecuting appeal on 21-12-51 and with his permission wrote to the High Court on 17-1-52 for refund of the balance out of Rs 750. Thus I received Rs 242-1-9 from High Court in March 1952.” This passage indicates that, at that stage, Shri M claimed he had obtained Attar Singh’s personal permission to withdraw the balance. However, when examined before Bhagwati J., he later said: “Somebody asked me to get the money from the High Court to meet the expenses. Subsequently I wrote to the High Court.” The discrepancy between the two statements reflects a change in his narrative regarding who authorised the withdrawal.

In response to the precise enquiry concerning the identity of the person who had requested the withdrawal of funds, the witness admitted that he could not recall exactly who had made the request. He did not describe that individual as the complainant’s relative or as a pairokar. During his cross-examination before the court, he asserted that a relative of Attar Singh had approached him and instructed him to obtain the money from the High Court. When his earlier statements were revisited, he explained that the phrase “with his permission” used in his affidavit was intended to refer to the agent or pairokar of Attar Singh. However, when pressed to identify that relative and to provide the name, he was unable to give a satisfactory answer. The Court found his testimony on this aspect of the case to be highly unsatisfactory and therefore untenable. Consequently, the Court expressed no hesitation in concluding that the witness had failed to establish the specific oral authority he alleged existed for the removal of the remaining balance. The next point relied upon in support of the claimed authority was the Vakalatnama executed by Attar Singh in favor of the witness. This Vakalatnama was in the form No 3 of the Fifth Schedule of the Supreme Court Rules, 1950, as they stood before their amendment in 1954. It was contended that this form authorized the agent not only to deposit monies but also to draw them, and that, by virtue of the specific wording, an agent possessed the power to perform “all things incidental to his acting” for his client with respect to the appeal. It was further argued that both the payment of printing charges and the withdrawal of any unspent balance of those charges constituted acts incidental to representation in the appeal. Conversely, it was observed that the form itself indicated that the agency was confined to work “in the Supreme Court of India,” and therefore the authority conferred could not extend to actions required in the Punjab High Court. The Court deemed it unnecessary to determine the precise scope of the powers exercisable under the Vakalatnama based on the form employed. An outstanding factual circumstance was that the amount in question had actually been paid by Shri ‘M’ directly into the Punjab High Court following a letter issued by that Court to him. Moreover, the receipt for the sum was issued by the High Court in his name, and the unspent balance was paid by the High Court directly to him without any additional written authority, apparently because he was the original depositor and thus presumed entitled to withdraw the surplus. In view of these facts it would appear that the High Court itself was under the

The Court observed that the impression existed that the withdrawal of the unspent balance of the printing charges fell within the authority that Shri 'M' possessed as an agent for the appeal before the Supreme Court. The Court noted that, if this impression was in fact mistaken, it might have been a misunderstanding shared equally by Shri 'M' and the High Court. In light of these circumstances, the Court held that the specific oral authority alleged by the prosecution had not been proved. Consequently, the Court concluded that no serious notice needed to be taken of the charge relating to that alleged oral authority. The remaining allegation, identified as charge No 3, read as follows: “That you after receiving the sum of Rs. 242-1-9 in March 1952, retained the said sum, without any intimation to your client Attar Singh and without claiming any amount as due from him by way of fees to you and without lodging a bill for taxation against him for a period of over three years”. The Court then listed the issues that required consideration under this charge: (1) whether Shri 'M' had informed Attar Singh about the withdrawal of the unspent balance of the printing charges; (2) whether Shri 'M' had informed Attar Singh that any fee remained due and had made any demand for such fee; and (3) whether Shri 'M' was justified in retaining the amount as fees without lodging a bill for taxation against his client.

To address these issues, the Court recalled the relevant factual background and set out additional facts. Criminal Appeal No 12 of 1950 had been filed in this Court on 11 May 1950 by the agent Shri 'M' on the basis of a vakalatnama signed by Attar Singh. The vakalatnama bore no date and was accepted by Shri 'M' on the same day, 11 May 1950. Attar Singh claimed that when he signed the vakalatnama, certain blanks were left empty and that, after signing, he gave the document containing those blanks to Sardar Raghbir Singh. According to Attar Singh’s testimony, he entered into an engagement with Sardar Raghbir Singh, handed over the money to him, and then departed, leaving the actual filing of the appeal to Sardar Raghbir Singh at a later date. Shri 'M', who had accepted the vakalatnama on 11 May 1950 and who filed the appeal memorandum in the Court on that same date, affixed the signatures of Sardar Raghbir Singh and Shri Madan to the document. Shri 'M' admitted that he himself had filled in the blanks in the vakalatnama in his own handwriting. He further asserted that Attar Singh was present at the time he accepted the vakalatnama and at the time the appeal was filed, and that Attar Singh subsequently paid him a sum of Rs 50 without any settlement of fees. Shri 'M' added that, upon accepting the engagement, he had been led to understand by Sardar Raghbir Singh that he would receive a reasonable fee, an understanding that, according to Shri 'M’, arose at the time the appeal was filed and presumably in the presence of Attar Singh. Attar Singh, however, denied ever being present at the filing, denied paying the sum of Rs 50 to Shri 'M', and denied having met Shri 'M' at any time in connection with the filing of the appeal.

In this case the Court observed that, based on Shri ‘M’ ’s testimony, if his evidence were accepted he could not claim any further fee beyond the initial expectation. About a year later a payment of Rs 750 was made to cover the printing charges. It was admitted that the sum was supplied by a draft drawn in favour of the Deputy Registrar of the High Court; the draft was given to Sardar Raghbir Singh by the brother-in-law of Attar Singh. Sardar Raghbir Singh passed the draft to Shri ‘M’, who in turn forwarded it to the High Court. Consequently the High Court issued a receipt dated 19 July 1951 in the name of Shri ‘M’. The printed record of the appeal was received by the Supreme Court in December 1951, and the relevant agents were presumably informed of its arrival in due course. Shri ‘M’ then applied to the High Court in January 1952 for a refund of the unspent portion of the printing charges and, in March 1952, he received a refund of Rs 242-1-9. The appeal was scheduled for hearing in May 1952. Attar Singh testified that, upon receiving notice that the appeal was to be heard, he travelled from Bombay—where he was employed at the time—to Delhi, only to find that Sardar Raghbir Singh had departed for China and was unavailable to argue the appeal. He consulted Sardar Raghbir Singh’s wife, who directed him to meet Shri ‘M’. The two parties agreed to retain Shri Umrigar, an advocate of this Court, to argue the appeal, and Shri Umrigar was accordingly appointed. However, the appeal was not actually taken up in May 1952 as initially expected. The engagements of both Sardar Raghbir Singh and Shri Madan were terminated in August 1952 by Shri ‘M’ acting on the instructions of Attar Singh. The appeal was later heard in November 1952, with Shri Umrigar presenting the arguments; Shri ‘M’ was present at the hearing and gave instructions to Shri Umrigar. The judgment on the appeal was delivered on 5 December 1952, allowing the appeal and remanding the matter for further hearing by the Sessions Court as an appellate court, based on the evidence on record. Nearly two years thereafter, on 24 November 1954, Attar Singh applied to the Punjab High Court stating that he had paid Rs 750 for the printing charges of the appeal record and that a balance remained due to him, requesting that the balance be remitted. The Deputy Registrar of the Punjab High Court replied on 17 October 1955, informing Attar Singh that the unspent balance of Rs 242-1-9 had been refunded to his counsel, Shri ‘M’ of the Supreme Court, and advising him to contact the Registrar regarding the matter.

The evidence of Attar Singh on this portion of the case was straightforward. He testified that after the appeal had been filed, around January 1951, he travelled to Bombay to accept private employment that he had secured there. He remained in Bombay until May 1952, when he received notice that his appeal was likely to be scheduled for hearing, prompting his return to Delhi. He explained that the appeal was not listed for hearing in May and that it extended beyond the long vacation period, so he arranged to remain in Delhi from about May 1952 onward. According to his statement, he first came into direct contact with Shri 'M' in May 1952 and had not met him at any earlier time. He asserted that Shri 'M' never informed him that any unspent balance from the printing charges was available, nor that Shri 'M' had withdrawn any such balance. He further said that he was not told of any outstanding fees payable to Shri 'M'. He was under the belief that no additional fee was due to Shri 'M', and that any fees had already been paid at the outset by Sardar Raghbir Singh. Throughout the period, including the two or three days when his appeal was heard by the Court, he reported that Shri 'M' never made any demand for a balance of fees from him.

Attar Singh recounted that toward the end of 1954 he faced a severe shortage of money because of additional proceedings required by the remand of his appeal. He thought that he might inquire with the High Court whether any unspent balance remained from the printing charges he had deposited, hoping to retrieve that amount to meet his financial needs. Accordingly, he wrote a letter to the High Court in November 1954 and, after sending several reminders, finally received a response dated 17 October 1955, nearly a year after his initial enquiry. He testified that before sending his letter to the High Court, he had approached Shri 'M' for information about the unspent balance, and it was on Shri 'M's advice that he composed the letter to the High Court. When the reply from the Deputy Registrar of the High Court arrived on 17 October 1955, Attar Singh met Shri 'M' again to ask whether he had received the refunded amount; Shri 'M' denied having received any money. Attar Singh then presented the High Court’s reply to Shri 'M', who expressed surprise and asked him to return later. On a subsequent meeting, Shri 'M' told Attar Singh that he would return the money within two days, but ultimately failed to do so. Following this series of interactions and on the suggestion of friends, Attar Singh lodged the present complaint with the Registrar of this Court.

Shri ‘M’ gave his testimony in response to the allegations. He stated that when the printed record arrived from the High Court and he became aware of its receipt, he sent a letter dated 21 December 1951 to Attar Singh. In that letter he informed the petitioner that the printed record had been received in the Supreme Court and that further steps were required. He further indicated that the petitioner was to provide him with funds for the necessary drafting of the petition of appeal, the statement of case, the affidavits of service of notices and the typing charges. Shri ‘M’ asserted that thereafter, in January 1952, Attar Singh approached him and was advised to write to the High Court to obtain a refund of the unspent balance of the printing charges. Shri ‘M’ admitted that he received a refund in March 1952 and that he applied that amount towards his own professional fee. He also recounted that in May 1952, when Attar Singh visited concerning the anticipated hearing of the appeal, he told the petitioner that he had already received the unspent balance. After the hearing of the appeal concluded, Shri ‘M’ informed Attar Singh that the bill for the work he had performed in connection with the appeal would be approximately five hundred rupees. He rejected the version presented by Attar Singh that he was unaware of any unspent balance, that his first contact with Shri ‘M’ regarding the balance occurred in 1954, and that he had written to the High Court on the petitioner’s advice to claim a refund. Shri ‘M’ specifically denied that the petitioner had met him repeatedly on this matter, that he had sent multiple reminders to the High Court at the petitioner’s request, or that he had been confronted with the High Court’s reply and subsequently disclosed the events to the petitioner.

The issue before the Court was which of the two conflicting narratives should be accepted. The Court examined whether Shri ‘M’ had ever communicated to Attar Singh that he would return the unspent balance and whether he had made any demand for the alleged fee balance. It was evident that no written notice or explicit demand from Shri ‘M’ to the petitioner existed, except for the single letter dated 21 December 1951, which Shri ‘M’ produced as evidence. He offered a copy of that letter, which read as follows: “S. Attar Singh C/o Gurdwara Sisganj, Delhi. Dear Sir, Your appeal pending in the Supreme Court No. 12 of 1950 is ripe for further steps as the record has been printed and despatched by the High Court, Simla. Now you have to supply me with funds for drafting petition of appeal, statement of case, affidavits of service of notices and typing charges. Since the record has reached the Supreme Court on 12th December 1951, you are to file petition within 30 days of receipt of this date. Please treat this as very urgent, otherwise the appeal shall be dismissed for non-prosecution.” The Court noted that the wording of the letter did not expressly state that Shri ‘M’ was demanding his own professional fees. Rather, the second paragraph could be read by a layperson as a request for reimbursement of expenses that would be incurred in prosecuting the appeal.

In this matter the Court observed that the wording of the letter dated 21 December 1951 did not indicate that the demand was for the advocate’s own fees; rather, the second paragraph could be understood by an ordinary person as a request for reimbursement of expenses incurred. The respondent, Attar Singh, testified that he never received the letter. The evidence showed that he was not present in Delhi at the time the letter was purportedly sent, and it was noted with some curiosity that the correspondence was addressed to him at the Sisganj Gurdwara in Delhi. Shri ‘M’ was cross-examined on this point, and the Court found that he was unable to provide a satisfactory explanation. He claimed that the address had been supplied by Sardar Raghbir Singh, but the Court noted that Sardar Raghbir Singh had not been questioned about this matter. Assuming, for the sake of argument, that the letter was genuine, it would have been impossible for Attar Singh to have received it. Consequently, no money was remitted and no written response was received in reply to the alleged demand. If the letter were true, the Court reasoned that a further letter correcting the address would have been expected after a reasonable enquiry.

To overcome this difficulty, Shri ‘M’ advanced a narrative that a relative of Attar Singh had contacted him in January 1952 and had instructed him to withdraw any unspent balance of printing charges, if such a balance existed. The Court found no evidence that these alleged instructions were made in response to the December 1951 letter. Moreover, the relative appeared not to have taken steps to determine whether any money was actually available or had been received. Having already examined the entire evidence concerning these alleged instructions and finding it unsatisfactory, the Court concluded that the story of instructions from the relative was wholly unreliable. Assuming without deciding that the December 21 1951 letter was indeed true, the Court highlighted the significance of the absence of any further reminders sent to Attar Singh’s correct address up to May 1952, when the appeal was ready for hearing, despite the fact that Attar Singh was not in Delhi during that period. It was also noted as surprising that, even after the disposal of the appeal and up to the stage of the complainant, Shri ‘M’ did not issue any written demand or send any bill for his fees to Attar Singh. The only reference to a bill, amounting to approximately Rs 550, appeared in a reply dated 16 December 1955 filed by Attar Singh before Justice Bhagwati, wherein the bill was subsequently produced on 5 March 1956 together with an affidavit. In paragraph 9 of that affidavit the respondent stated, “I, as agent, had lien over the sum of Rs 242-1-9 which was appropriated towards my bill for Rs 542-15-9 (herewith attached). Rs 250 is still due to me from Attar Singh.” This bill was marked as an exhibit on behalf of Shri ‘M’.

In this case, the Court observed that the bill presented by Shri M stated: “my bill for Rs 542-15-9 (herewith attached). Rs 250 is still due to me from Attor Singh.” The same bill was marked as an exhibit on behalf of Shri M. The evidence of Shri M indicated that, when he accepted the engagement, he understood he would receive a reasonable fee, although no settlement had been reached at that time. Shri M’s testimony was not precise regarding the total reasonable fee he was entitled to, but he did say that after the appeal was concluded he informed his client that his bill would be Rs 500, which leads to the inference that he claimed the amount shown in the exhibited bill. The Court therefore reasoned that, had he considered his claim legitimate, there should have been no obstacle to applying to the Court for taxation of his fees against the client, a procedure that is permitted even in criminal matters. Nonetheless, Shri M admitted that he did not pursue such a taxation application, despite arguing that a large balance was due to him. When asked why he had not taken this step, Shri M explained that “because the appeal was remanded and it is a general practice here that when the case is finished the clients do pay the balance. So we do not insist further. Generally when the appeal or a matter is finished I do not make complaints or file suits or do anything for the balance of fees because mostly these matters create fuss. I did not, in this matter, press for the balance.” The Court noted that the bill listed out-of-pocket expenses totalling Rs 22-15-6, leaving a balance of Rs 27-0-6 from the amount of Rs 50 that, according to Shri M’s own statements, he had already received from his client. The remainder of the bill comprised claims for fees for various items of work allegedly performed. If it is true, as Shri M asserts, that he sent a letter to Attor Singh in December 1951 demanding fees, the Court found it striking that he never issued any further written demand during the pendency of the appeal nor sent a bill after the appeal’s disposal for the outstanding balance, even though he might later have considered seeking taxation. This admitted inaction, the Court held, makes it probable that after obtaining a refund of more than Rs 200 after December 1951—without the specific oral instructions or knowledge of his client or the agent, as already determined—the plaintiff remained quietly silent, did not inform the client that he had received the balance, and did not press a claim for the fees. Consequently, the Court considered the claim of a lien on the amount, based on the presented bill, to be unsupported by the circumstances.

The Court noted that the respondent had not previously made any demand for the fees, and that only at the present stage he asserted a lien over the amount by presenting a bill and seeking to retain and appropriate the sum on the basis of that bill. Counsel for Shri ‘M’ strongly urged that the testimony of Attar Singh, which stated that Shri ‘M’ never informed him of having obtained a refund of the unspent balance and that, to Attar Singh’s knowledge, no demand for the balance of fees was ever made, should be rejected as utterly improbable. Counsel further contended that the evidence of Shri ‘M’, claiming that he had orally informed Attar Singh of the refund of the unspent balance and had repeatedly made oral demands for the balance of fees, ought to be accepted. He suggested that it was Attar Singh who quietly avoided raising the issue of the outstanding fees, fully aware that Shri ‘M’ had already received part of the sum and that a substantially larger amount would become payable on a regular bill. Counsel argued that, in the absence of reasonable proof of an arrangement whereby Shri ‘M’ was to receive only Rs 100 and that such payment had been made, it would be very unlikely for a professional gentleman like Shri ‘M’ to continue working on the appeal without even an oral demand for fees unless he had been authorised by the client to withdraw and appropriate the amount. He further stressed that Attar Singh’s conduct in this regard created considerable suspicion. The Court observed that, although the appeal had been disposed of in December 1952, Attar Singh made no enquiry about the unspent balance until nearly two years later. It was pointed out that Attar Singh could not satisfactorily explain how he came to learn that any balance existed, nor how he might obtain payment of that balance from the High Court. He submitted that the claim that he wrote to the Punjab High Court at the instance of Shri ‘M’ to inquire about the balance was utterly improbable. The Court, however, was not persuaded by these comments. It found no difficulty in accepting Attar Singh’s explanation that he only contemplated the possibility of recovering any unspent balance when he was pressed for money to continue his criminal appeal after being remanded. Whether the letters addressed to the Punjab High Court were written on Shri ‘M’’s advice was left uncertain, but the Court noted that, for the reason given by Attar Singh, he commenced enquiries about the unspent balance only two years after the appeal’s disposal. The Court considered that this timing was the truly material aspect of the matter.

At the first chance that Shri ‘M’ had to present his case, he did not raise the specific issue of informing Attar Singh about a refund nor did he demand his fees. In paragraph 5 of Attar Singh’s complaint, dated 5 December 1955, he recorded that he had constantly been seeking information from Shri ‘M’, who had repeatedly denied receiving any money from the High Court. Shri ‘M’ responded on 16 December 1955 with a brief denial, stating that paragraph 5 of the application was “emphatically denied and not admitted.” Later, in an affidavit dated 5 March 1956 filed before Justice Bhagwati, Shri ‘M’ asserted that on 21 December 1951 he had asked Attar Singh to forward funds for prosecuting the appeal and, with his permission, had written to the High Court on 17 January 1952 seeking a refund of any remaining balance. He later tried to explain that “his permission” actually meant “his pairokar’s permission,” but the Court found this explanation unreliable based on the evidence and probabilities. The claim that Shri ‘M’ had directly told Attar Singh about obtaining a balance from the High Court first surfaced during cross-examination before Justice Bhagwati, where Shri ‘M’ said he had mentioned it at the time of the appeal hearing but added that he had not asked for anything further then. He further admitted that it was only when Attar Singh asked him to return the money that Shri ‘M’ informed him that the balance should be paid. In the present Court, during the cross-examination of Attar Singh, this narrative was challenged through a series of questions and answers. When asked whether, at the time of the appeal hearing, Shri ‘M’ had told him that Rs 242 had been recovered from the High Court, Attar Singh replied that it was “far from true.” When questioned whether Shri ‘M’ had also said his fees were due, he answered “No.” He further denied that he had remained silent because he knew more than Rs 242 would be owed to Shri ‘M’, stating that the question did not arise. A later line of questioning addressed whether his claim of showing a letter dated 17 October 1955 to Shri ‘M’ was a fabrication; he affirmed that it was correct. He then recounted that Shri ‘M’ had told him he had recovered Rs 242 and, when Attar Singh inquired about that amount, Shri ‘M’ allegedly said that Attar Singh “had to pay” the fees, which would amount to a larger sum. Attar Singh denied that any such conversation ever took place, either then or subsequently.

In the present case, the Court observed that the delayed claim concerning a notice of withdrawal of the unspent balance and the demand for fees, which had been raised during the hearing of the appeal, could not be accepted as truthful. The Court relied upon Shri M’s own admission made before Justice Bhagwati, namely that even at the time of the appeal hearing—an event that lasted two or three days—he had not asked for any additional amount. The Court held that this admission had to be accepted as correct. Consequently, it became highly probable that Attar Singh first learned that Shri M had obtained a refund of the unspent balance of printing charges only when the High Court communicated this fact to him. From this, the Court inferred that the initial oral demand for fees by Shri M to Attar Singh likely arose only after Shri M was confronted with the High Court’s letter. This sequence of events was also acknowledged by Shri M during the enquiry before Justice Bhagwati. The Court further noted Shri M’s own testimony, in which he stated that after receiving the unspent balance he appropriated the sum toward his professional fees and that no settlement of fees had been reached between him and his client. He also asserted that Raghbir Singh had never instructed him to accept only Rs 50 or Rs 100 as his fee. During cross-examination, Shri M was questioned about whether the appropriation had been made with the client’s consent. He affirmed that in May 1952, when he informed the client that he had received money, he also told the client that he was appropriating that money. He maintained that no question remained concerning any lien, that the money was appropriated for fees, and that, whether described as a lien or an appropriation, it was indeed a lien and therefore he appropriated it. He confirmed that he possessed a lien and that the client’s consent existed. The Court found Shri M’s answers on the issue of client consent to be unsatisfactory, even though he admitted to the appropriation. Based on the evidence, the Court formed the opinion that the following facts were established: without Attar Singh’s knowledge or prior notice, Shri M obtained in March 1952, from the High Court, the unspent balance of the printing charges that he had originally deposited on behalf of his client, the amount being Rs 242-1-9. Shri M retained this sum without informing his client and without making any demand or presenting a bill for fees. The client first became aware of the refund only through the Punjab High Court’s letter, and it was only when Shri M was confronted with that letter that he raised the issue of fee payment. Prior to this occasion, no demand or communication regarding fees had been made by Shri M.

He denied that he had received any such money when his client inquired, and he did not demand any fees. In fact, after receiving the amount, he appropriated it without making any fee demand, without lodging a bill for taxation, and without the client’s knowledge or consent. The next issue the Court considered was whether, based on these facts, Shri ‘M’ was guilty of professional misconduct. Counsel submitted that an agent has a lien on client monies that come into his possession, allowing him to retain a reasonable fee that might be due if, for the purposes of this case, the fee had not been settled earlier. It was further submitted that Shri ‘M’ merely exercised that lien and retained the amount that had legitimately come into his hands, applying it toward what he regarded as a reasonable fee due to him, and that any additional fee should be settled later at the client’s good sense and goodwill after the case ended. Accordingly, his action was described as bona fide. It was also pointed out that, although such conduct might not conform to the highest professional standards, it should not be classified as professional misconduct. Counsel argued that not every conduct that may be seen as unjustifiable or improper amounts to professional misconduct, especially where the agent or advocate honestly believed his actions were justified, provided that such conduct is not expressly prohibited by any positive rules issued by a competent authority to regulate agents and advocates in similar matters. The Court was unable to accept this contention. As previously held in the matter of Mr G, a Senior Advocate of the Supreme Court, “the Court, in dealing with cases of professional misconduct is not concerned with ordinary legal rights, but with the special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who, because of their privileged status, are subject to certain disabilities which do not attach to other men and which do not attach even to them in a non-professional character.” The Court further quoted, “He (a legal practitioner) is bound to conduct himself in a manner befitting the high and honourable profession to whose privileges he has so long been admitted; and if he departs from the high standards which that profession has set for itself and demands of him in professional matters, he is liable to disciplinary action.” The Court observed that the absence of a specific rule governing the particular situation on the facts found does not justify a lower standard of conduct. If anything, the lack of a rule heightens the responsibility of members of the profession to uphold the strict standards expected of them.

In this matter, the Court observed that members of the profession attached to this Court must conduct themselves in accordance with the very high privilege enjoyed by an Advocate of the Supreme Court, who is entitled by law to practice in all courts of India. The Court recognised that at the time the facts giving rise to the dispute occurred, Shri ‘M’ was merely an Agent; however, when he later received a letter from the Punjab High Court indicating receipt of the unspent balance, he had already become an Advocate on record. Accordingly, the Court applied rule 30 of Order IV of the amended Supreme Court Rules, which provides that if the Court is of the opinion that an Advocate has been guilty of misconduct or conduct unbecoming of an Advocate, disciplinary action may be taken as prescribed. The Court further noted that even under the earlier rules 31 and 32 of Order IV, the same position would have applied to the present case. While rule 32 of the old scheme, dealing with disciplinary action against agents, does not contain the expression “conduct unbecoming of an Advocate,” the Court considered that this omission is likely due to the different relationship an Agent may have with his client compared with an Advocate. Nonetheless, the Court found no reason to treat the standard applicable to an Agent differently from that applicable to a current Advocate on record in the circumstances before it. The Court affirmed that the profession’s high standards require any Advocate or Agent who receives client monies—whether earmarked as fees or otherwise—to act as a trustee for the client with respect to those funds. Even where the Advocate holds a lien on such monies, it would be improper to retain or appropriate the funds for fees without the client’s express or implied consent or without a court order. The Court explained that a lien may be exercised only after reasonable notice has been given both of the receipt of the monies and of the intention to invoke the lien, pending settlement of the account. In the absence of a prior fee settlement, the Advocate cannot act as his own judge in determining a reasonable fee. This fiduciary position is especially heightened when the money represents an unspent balance that was originally provided for a specific purpose, such as payment of printing charges in the present case.

In the matter before the Court, the issue was the handling of an unspent balance of money that had been placed with the solicitor. It is well settled law that a solicitor does not acquire a lien over such unspent balance, either at common law or under any statutory provision. This principle is recorded in Cordery’s Law Relating to Solicitors, fourth edition, page 456, and in Halsbury’s Laws of England, second edition, volume 31, page 239, paragraph 265.

The Court observed that, in the present case, Shri ‘M’ retained and appropriated the unspent money without informing the client, without issuing a bill for his fees, and without applying for taxation even after the appeal had been disposed of. The Court considered this conduct to amount to professional misconduct. The misconduct was found to be aggravated by evidence presented by Attar Singh. Shri ‘M’ admitted that Attar Singh bore no personal animus against him, and the Court saw no reason to reject Attar Singh’s testimony. That evidence showed that, in 1954, when Attar Singh asked Shri ‘M’ about the unspent balance, Shri ‘M’ denied any knowledge of it. Later, when confronted with a letter received from the Punjab High Court, Shri ‘M’ acknowledged receipt of the money and demanded fees, yet he evaded confronting the issue in a fair and open manner.

The record further indicated that Shri ‘M’ had been enrolled as an Agent in 1949. He explained that, at the request of Shri Madan and Sardar Raghbir Singh, he accepted the engagement in May 1950, which was his third or fourth engagement as an Agent. While the Court recognized that inexperienced practitioners can sometimes be taken advantage of by unscrupulous clients, it was satisfied that the present circumstances did not fall within that category.

Consequently, the Court was of the clear opinion that Shri ‘M’ was guilty of professional misconduct. It directed that Shri ‘M’ be suspended from the practice of law for a period of two years, and ordered the appropriate relief accordingly.