Bar council of India opinions - IV LLB - KSLU -50-Opinions PDF

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CASES OF PROFESSIONAL MISCONDUCT DECIDED BY THE DISCIPLINARY COMMITTEES OF THE BAR COUNCIL OF INDIA NEGLIGENCE IN CONDUCTING CASE 1.

DC Appeal No. 16/1993

25(1) 1998 IBR 135

1

2.

DC Appeal No. 8/1994

3.

D.C. Appeal No. 20/1994

25(1) 1998 IBR 153

4

24(3&4) 1997 IBR193

7

4.

BCI Transfer Case No. 76/1995

24(3&4) 1997 IBR 201

10

5.

BCI Transfer Case No. 104/1990

23(1) 1996 IBR 155

12

6.

BCI Transfer Case No. 52/1989

21(1) 1994 IBR 187

13

7.

BCI Transfer Case No. 14/1980

16(2) 1989 IBR 264

15

8.

DC Appeal No. 35/1987

16(3&4) 1989 IBR 536

18

9.

DC Appeal No. 40/1986

14(3) 1987 IBR 488

21

10.

DC Appeal No. 7/1981

14(4) 1987 IBR 735

23

11.

DC Appeal No. 19/1993

*

23(1) 1996 IBR 152

25

12.

DC Appeal No. 24/1987

*

13.

DC Appeal No. 3/1988*

14.

16(2) 1989 IBR 273

27

16(2) 1989 IBR 285

30

DC Appeal No 10/1986 & 10A/1986

14(3) 1987 IBR 491

32

15.

DC Appeal No. 12/1986

14(4) 1987 IBR 745

34

16.

FAILURE TO RENDER ACCOUNTS, MISAPPROPRIATION OF CLIENT’S MONEY, BREACH OF TRUST, MISUSE OF CLIENT’S CONFIDENCE DC Appeal No. 13/1991 24(1&2) 1997 IBR 271

36

17.

DC Appeal No. 24/1990

23(1) 1996 IBR 135

38

18.

DC Appeal No. 41/1987

16(1) 1989 IBR 122

40

19.

DC Appeal No. 21/1985

15(3&4) 1988 IBR 359

42

20.

BCI Transfer Case No. 43/1982

15(3&4) 1988 IBR 364

44

21.

DC Appeal No. 28/1986

15(3&4) 1988 IBR 374

45

22.

DC Appeal No. 38/1984

14(2) 1987 IBR 319

47

23.

DC Appeal No. 7/1986

14(3) 1987 IBR 496

49

24.

BCI Transfer Case No. 127/1988

19(3&4) 1992 IBR 125

52

25.

BCI Transfer Case No. 27/1988

16(3&4) 1989 IBR 542

54

26.

BCI Transfer Case No. 24/1986

16(3&4) 1989 IBR 563

57

27.

DC Appeal No. 23/1987

15(1&2) 1988 IBR 187

60

28.

DC Appeal No. 34/1985

14(4) 1987 IBR 757

62

29.

BCI Transfer Case No. 29/1981

WITHHOLDING OF DOCUMENTS

MISLEADING CLIENT, CHEATING THE CLIENT, MAKING FALSE ASSURANCES

THREATENING CLIENT, BLACKMAILING THE CLIENT 16(2) 1989 IBR 245

64

15(3&4) 1988 IBR 354

68

DISREGARD OF CLIENT’S INTEREST 30.

DC Appeal No. 33/1986

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50 Selected Opinions of the Bar Council of India

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WITHDRAWAL FROM CASE WITHOUT SUFFICIENT REASON AND SUFFICIENT NOTICE 31.

BCI Transfer Case No. 16/1986

15(1&2) 1988 IBR 197

70

REPRESENTING THE OTHER SIDE, CHANGING OF SIDE, APPEARING FOR BOTH SIDES 32.

BCI Transfer Case No. 39/1987

19(3&4) 1992 IBR 147

72

33.

BCI Transfer Case No. 39/1989

19(3&4) 1992 IBR 149

74

34.

BCI Transfer Case No. 52/1988

16(1) 1989 IBR 110

76

35.

DC Appeal No. 6/1981

36.

DC Appeal No. 64/1974

37.

BCI Transfer Case No. 40/1991

38.

BCI Transfer Case No. 6/1984

39.

DC Appeal No. 46/1986

16(2) 1989 IBR 280

85

40.

BCI Transfer Case No. 2/1980

16(2) 1989 IBR 289

87

15(1&2) 1988 IBR 193

78

14(2) 1987 IBR 314

79

25(1) 1998 IBR 139

81

16(3&4) 1989 IBR 550

83

MISGUIDING COURT

INTERFERING WITH THE DECISION BY INFLUENCING THE JUDGE

MAKING SCANDALOUS ALLEGATIONS AGAINST THE PRESIDING OFFICER 41.

BCI Transfer Case No. 101/1988

16(3&4) 1989 IBR 524

89

42.

DC Appeal No. 41/1986

15(1&2) 1988 IBR 200

92

CONDUCT UNBECOMING OF AN ADVOCATE, LOWERING DIGNITY OF PROFESSION 43.

BCI Transfer Case No. 16/1988

16(1) 1989 IBR 99

93

44. 45.

DC Appeal No. 14/1988

16(2) 1989 IBR 258

95

DC Appeal No. 10/1988

16(3&4) 1989 IBR 572

98

ACTING IN A CASE IN WHICH THE ADVOCATE HAS PECUNIARY INTEREST, SHARING PROFITS OF CASE AND LENDING MONEY TO THE CLIENT 46.

DC Appeal No. 23/1988

16(3&4) 1989 IBR 532

100

47.

BCI Transfer Case No. 10/1986

16(3&4) 1989 IBR 520

102

48.

DC Appeal No. 45/1974

15(1&2) 1988 IBR 182

104

49.

BCI Transfer Case No. 2/1988

16(1) 1989 IBR 102

106

50.

BCI Transfer Case No. 57/1987

14(4) 1987 IBR 753

108

51.

OTHER MISCONDUCT (MAKING ALLEGATIONS AGAINST VARIOUS AUTHORITIES) DC Appeal No. 43/1996 24(3&4) 1997 IBR 207

CONVICTION FOR OFFENCE INVOLVING MORAL TURPITUDE

FORGERY

109

CASE 1 (Negligence in Conducting Case) 25(1) 1998 IBR135

D.C. Appeal No. 16/1993

A vs. R 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 situate 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. In the mean while 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 rumours true. On 24.9.1991 the Complainant met RespondentAdvocate 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

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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.

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50 Selected Opinions of the Bar Council of India 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 (Negligence in Conducting Case) 25(1) 1998 IBR153

D.C. Appeal No. 8/1994

A vs. R Shri D.V. Patil (Chairman) and Shri S.C. Chawla and Shri S.G. Nair (Members) Judgement Dated 8th December, 1996 FACTS OF THE CASE

Complainant’s Case: In 1981 the Complainant paid in all Rs. 70,000 to Rao & Raju Builders Pvt. Ltd., Hyderabad, for the construction of a 3 bed room house in the plot allotted to him. But the builders failed to perform their obligation under the contract. Complainant met Mr. Rao, Managing Director of the concern to settle the matter amicably. Mr. Rao referred the Complainant to the Respondent-Advocate to seek his advice. Complainant met the Respondent in March 1984 and the Respondent advised the Complainant to file a suit against the builders for recovery of money. Complainant engaged the Respondent by paying Rs. 5,000 and signed the plaint. Later the Complainant requested his brother-in-law who was also his General Power of Attorney-holder to pursue the matter. Complainant’s brother-in-law met the Respondent in 1991 and enquired about the progress. Respondent told him that suit was still in registration stage and was yet to be numbered. Complainant sent a registered letter dated 4.9.91 to the Respondent along with a D.D. for Rs. 400 towards the expenses and requested him to expedite the matter. As there was no reply to this letter, he sent another registered letter dated 18.12.1991. Even for this letter, he did not receive any reply. Therefore, the Respondent has committed professional misconduct as he had failed to file the suit in spite of having received the amount of fee. Respondent’s Case: Respondent in his reply admitted the fact that Complainant had approached him seeking his advice. But he contended that he could not take up Complainant’s case as Mr. Rao one of the directors of Rao & Raju Builders Pvt. Ltd. had already approached him. He only gave a friendly advice for instituting a suit against the concern. The Respondent denied all other facts mentioned in the complaint. As to the D.D. of Rs. 400, the Respondent contended that he had returned the same on 19.9.91. Therefore, he had not committed any professional misconduct.

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50 Selected Opinions of the Bar Council of India PROCEEDINGS

Based on the pleadings of both sides, the following issues were framed: 1. Whether the Complainant has paid Rs. 5000 to the Respondent for filing the suit against Rao & Raju Builders Pvt. Ltd., Hyderabad? 2. Whether the Complainant sent Rs. 400 through D.D. to the Respondent for taking necessary steps in the matter entrusted to him? 3. Whether the Respondent took any steps in respect of the case entrusted by the complaint to him? 4. Whether the Respondent is guilty of any professional misconduct? 5. What relief? Appellant argued that there was contradiction in the evidence of Complainant and his witnesses. Respondent in his evidence admitted that there was no written communication between him and the Respondent-Advocate after filing the suit until 4.9.1991. He also admitted that there was no proof for the payment of Rs. 5000. Similarly, Complainant’s witnesses have not supported the assertion of the Complainant in respect of the payment and signing of the plaint. Respondent further argued that the suit was filed by one Shri Bhagawan Dass Sharma, Advocate, on 7.6.1984 and he was the Complainant’s Advocate in that suit. Respondent exhibited his letter dated 19.9.91 returning the D.D. for Rs. 400 to the Complainant as he was not concerned in the case. Hence, he claimed that the impugned order be set aside on following grounds: 1. As per the Complainant’s own case he did not care to know the fate of a suit purported to if filed by him in the year 1983, till 1991. Therefore, he was not interested in the matter. 2. There are discrepancies and contradictions in the evidence led by the Complainant. 3. There is no proof for the Complainant having paid Rs. 5,000 to the RespondentAdvocate. 4. On above grounds, the Complainant has miserably failed to prove misconduct on the part of the Respondent-Advocate. Complainant’s Advocate argued that he had produced enough evidence, oral as well as documentary to prove his case against the Respondent. He argued that Complainant’s witnesses have corroborated the evidence of the Complainant on the fact of Complainant engaging Respondent as his Advocate by paying Rs. 5000. Ex.R1, a letter dated

50 Selected Opinions of the Bar Council of India

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19.9.1991 sent by Respondent to Complainant was never received by the Complainant. He also expressed doubt as to whether an Advocate will reply a registered letter by an ordinary letter, especially when he was returning a D.D. Hence, as there was no proof of having the letter posted, Ex.R1 was only a concocted document. Complainant’s case was supported by an independent witness whose evidence was of great weight and could not be easily brushed aside. After careful consideration of the arguments and evidence of both sides, D.C. of B.C.I. was of the opinion that the Respondent was engaged by the Complainant as his counsel by paying Rs. 5000 towards his fees. In spite of having received the fees, the Respondent did not file the suit. D.C. & B.C.I. did not accept the plea of Respondent that he had sent a letter dated 19.9.1991 to the Complainant and returned the DD for Rs. 400, as there was no proof for that. Hence the Respondent was found guilty of professional misconduct and the D.C. of the B.C.I. found no reason to differ with the finding of S.B.C.

ORDER

In view of the above reasons the D.C. of the B.C.I. dismissed the appeal and upheld the order of the S.B.C. suspending the Respondent for a period of 6 months from practice.

CASE 3 (Validity of Order of S.B.C. Passed after the Statutory Period of One Year) 24(3&4) 1997 IBR193

D.C. Appeal No. 20/1994

A vs. R Shri G.D. Bhatt (Chairman) and Shri J.B. Pardiwala and Shri V.R. Sharma (Members) Judgement Dated 1st June, 1996

FACTS OF THE CASE

Complainant’s Case: One Subhash Jain, brother of the Complainant was convicted under sec. 302, I.P.C., and was sentenced to undergo life imprisonment. He applied under sec. 2 of the Madhya Pradesh Prisoners Release on Probation Act, 1954 before the Indore Bench of Madhya Pradesh High Court at M.P. No. 14/92. The same came to be dismissed by the High Court on 8.1.1992. Against this Order of the High Court in M.P. No. 14/92, the Complainant’s brother wanted to prefer SLP and the Complainant engaged the Respondent for the said purpose. Respondent-Advocate demanded Rs. 15,000 towards his professional fees and expenses. Complainant promptly paid the same to the Respondent along with case papers. After some time, the Complainant enquired with the Respondent about the progress in the case. Respondent informed that he had filed S.L.P. and show cause notices had been issued by the Hon’ble S.C. After persistent demand from the Complainant, Respondent sent a copy of S.L.P. and the alleged order of the S.C. The Complainant was suspicious about the genuineness of these documents and on further probe into the matter found that they were all forged documents and no S.L.P. had in fact been filed by the Respondent–Advocate. Hence, the Respondent has committed misconduct by not filing Special Leave Petition in spite of payment of fees as demanded by him.

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50 Selected Opinions of the Bar Council of India

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PROCEEDINGS

D.C. of S.B.C. framed the following issues: 1. Whether the Respondent-Advocate had been engaged by the Complainant for filing of a S.L.P. before the Supreme Court against the order in MP No. 14/92 dated 8.1.1992, and for this purpose had he paid a sum of Rs. 15,000 to the Respondent-Advocate towards the fees? 2. Whether the alleged copy of the S.L.P. and copy of Supreme Court order was sent by the Respondent to the Complainant? 3. Whether the copy of the S.L.P. order and petition sent by the RespondentAdvocate was not genuine and fake one? 4. Whether on proof of allegation, the professional misconduct?

Respondent-Advocate is

guilty

of

After going through the evidence, D.C. of S.B.C. found Respondent guilty of professional misconduct and passed an order dated 2.4.1994 suspending his sanad for a period of 7 years, and also ordered that if the Respondent refunds the amount of Rs. 15,000 with interest at bank rate to the Complainant his sanad would be suspended for 5 years only. In the appeal, Respondent’s case was based on a preliminary contention that the order of the S.B.C. was vitiated as the same was passed beyond the stipulated period of 1 year. In support of this submission, he relied...