Madras High Court
M.Thavamani vs Amsath on 3 March, 2021
A.S.(MD)Nos.28 to 30 of 2020 etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)Nos.28 to 30, 42 to 46, 48, 50 to 57 and 98 of 2020
and
C.M.P.(MD)Nos.1822, 1825 and 3375 of 2020
A.S.(MD)No.28 of 2020:-
M.Thavamani ...Appellant/Plaintiff
Vs.
1.Amsath
2.The Revenue Divisional Officer,
Lathams Bungalow Road,
Ramanathapuram Town and District.
3.The Executive Engineer and Administrative Officer,
Tamil Nadu Housing Unit,
K.T.M.Building 1st Floor,
Vandikaran Street,
Ramanathapuram Town and District.
4.The District Collector,
Sethupathi Nagar,
Ramananathapuram District.
5.The Managing Director,
Tamil Nadu Housing Board,
493, Annasalai, Nanthanam,
Chennai-35. ...Respondents/Defendants
PRAYER: This Appeal Suit is filed under Section 96 r/w Order 41 Rule 1 of
the Code of Civil Procedure, against the judgment and decree made in
O.S.No.22 of 2017 dated 28.08.2019 on the file of the Principal District
Court, Ramanathapuram.
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For Appellant : Mr.A.S.Narasimhan
for Mr.M.Thirunavukarasu
For R1 : Mr.H.Lakshmi Shankar
For R2 & R4 : Mr.J.Gunaseelan Muthiah
Additional Government Pleader
COMMON JUDGMENT
Since the facts are identical, this Court is inclined to dispose of all
the appeals by this common judgment.
2. These appeals have been filed as against the decree and
judgment of the trial Court dismissing the suits filed claiming legal fees at
the rate of 10% said to have been agreed by the litigants in a land
acquisition proceedings.
3. For the sake of convenience, the parties are referred to herein,
as per their rank before the trial Court.
4. The brief facts, leading to the filing of this Appeal Suit, are as
follows:-
(i) The plaintiff is a practicing Lawyer. An extent of 470.28 cents in
Survey Nos.56/4, 56/5 and 56/6 were acquired for the purpose of Tamil
Nadu Housing Board on 03.04.19927 from the first defendant/land owners
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in all the suits. As the land owners did not know about the proceedings of
the Land Acquisition, the plaintiff contacted them either directly or through
letter and impressed upon them to proceed further. Accordingly, he was
engaged by the defendants. The plaintiff has also prepared objections as
against the acquisition proceedings. Despite his objections, only 16
references were made under Section 18 of the Land Acquisition Act (for the
sake of brevity hereinafter referred to as 'the Act'). One such reference is
relating to one Ansari, who is the first respondent in A.S.(MD)No.51 of
2020. The above reference was numbered as L.A.O.P.No.3 of 1999.
(ii) The land owners have orally agreed to pay 10% fee of the
enhanced compensation. Besides 5% of appeal expenses and also other 5%
expenses for engaging Advocates. Accordingly, the first defendant in all the
suits have agreed to pay the admitted amount and executed the document
dated 12.09.2002 separately. The plaintiff has also taken steps to file writ
petition before the High Court to complete the acquisition proceedings.
Besides, he also proceeded further under Section 28(A) of the Act and
ultimately, got the compensation to the parties at the rate of Rs.5,000/- per
cent. After discharging his professional duty, the land owners /defendants
have failed to act upon as per the document, dated 12.09.2002. Hence, the
suits have been filed seeking fee and expenses with 11% interest and
seeking permanent injunction as against the second and third respondents.
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5. It is the contention of the land owners/first defendant that the
plaintiff has not taken any steps to refer the matter under Section 18 of the
Act and similarly, all the proceedings under Section 28 (A) of the Act were
conducted by the land owners themselves. It is stated that the plaintiff was
not engaged specifically to get enhanced compensation. Many lawyers have
appeared in various land acquisition cases. The land owners/ defendants
agreed to receive a sum of Rs.5,000/- per cent in a mediation conducted by
the defendants 2 to 5, in respect of which the plaintiff herein has no role to
play. In fact the plaintiff acted against his profession and delayed the
compensation. In fact the plaintiff was demanding 20% of the compensation
amount from the land owners/defendants as fee. Hence, prayed for
dismissal of the suit.
6. Based on the above pleadings, the trial Court has framed the
following issues in all the suits:-
O.S.No.35 of 2013:-
1. Whether the agreement dated 12.09.2002 said to have
been executed between the plaintiff and the first defendant is true
and binds on the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
3. Whether the plaintiff has barred under Section 28(A) of
the Land Acquisition Act on behalf of the defendant?
4. Whether the plaintiff is entitled to claim legal fees as
5. To what other reliefs?
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O.S.No.17 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
22,960/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
3. To what other reliefs?
O.S.No.18 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
26,005/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
3. To what other reliefs?
O.S.No.19 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
27,730/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
3. To what other reliefs?
O.S.No.20 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
9,869/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
3. To what other reliefs?
O.S.No.21 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
18,634/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
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3. To what other reliefs?
O.S.No.22 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
7,694/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
3. To what other reliefs?
O.S.No.23 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
18,053/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
3. To what other reliefs?
O.S.No.24 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
40,294/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
3. To what other reliefs?
O.S.No.25 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
74,344/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
3. To what other reliefs?
O.S.No.26 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
8,205/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
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3. To what other reliefs?
O.S.No.27 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
8,722/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
3. To what other reliefs?
O.S.No.28 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
51,796/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
3. To what other reliefs?
O.S.No.29 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
3,03,892/- from the first defendant along with interest?
2. To what other reliefs?
O.S.No.30 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
1,02,057/- from the first defendant along with interst?
2. Whether the plaintiff is entitled to permanent
injunction?
3. To what other reliefs?
O.S.No.31 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
1,02,058/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
3. To what other reliefs?
O.S.No.32 of 2017:-
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1. Whether the plaintiff is entitled to receive a sum of Rs.
6,53,520/- from the first defendant?
2. Whether the plaintiff is entitled to interest for the said
amount?
3. Whether the plaintiff is entitled to permanent
injunction?
4. To what other reliefs?
O.S.No.33 of 2017:-
1. Whether the plaintiff is entitled to receive a sum of Rs.
22,960/- from the first defendant?
2. Whether the plaintiff is entitled to permanent
injunction?
3. To what other reliefs?
7. Since the issue in all the suits is common, the trial Court has
disposed of all the suits by a common judgment, dated 28.08.2019.
8. Before the trial Court on the side of the plaintiff, P.W.1 was
examined and Exs.A1 to A79 were marked and on the side of the defendants
D.W.1 and D.W.2 were examined and Exs.B1 to B11 were marked.
9. It is the contention of the learned counsel for the
plaintiff/appellant that he was engaged by the land owners / defendants for
the purpose of getting higher compensation for the lands acquired from the
land owners/defendants in a Land Acquisition Proceedings. The land
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owners had executed agreements in Exs.A1, A6 to A15 and A18 to A21
dated 12.09.2002 authorizing the plaintiff to appear on their behalf before
the Land Acquisition Authorities and the Land Acquisition Tribunal for
enhancement of compensation. Besides, they also agreed to pay the fees at
the rate of 10% of the total compensation apart from that, expenses at
another rate of 10%. In all the cases, the land owners/defendants have
admitted that they have engaged the plaintiff. That itself clearly indicates
that they also agreed to pay the fees as per Ex.A1 and other documents as
referred above. As long as there is no plea of fraud, the document dated
12.09.2002 has to be given weight and it cannot be ignored altogether.
10. It is the further contention of the plaintiff that all the
documents, particularly Ex.B7 makes it very clear that in a reference under
Section 28(A) of the Act, the plaintiff has appeared on behalf of the
defendants. That apart, even during the mediation proceedings, he has
appeared on behalf of the land owners/defendants and he obtained consent
from the parties. Hence, the matter has been settled agreeing to receive
compensation at the rate of Rs.5,000/- per cent. Having received the
amount and agreed to pay the specified fee, now the land
owners/defendants had turned to deny the legal fee payable to the plaintiff.
Hence, prayed for allowing the appeals.
11. In respect of his submission, he relied upon the following
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judgement:-
(1) M.Dhilipkumar vs. R.Govindaraj and others [2009 (5) CTC 524]
12. The learned counsel appearing for the respondents submitted
that the very pleadings in the plaint itself indicate that when the lands were
acquired and acquisition order has been passed, the plaintiff has
approached the land owners/defendants, who are illiterates, and obtained
vakalat. However, except the case, which is the subject matter of A.S.
(MD)No.51 of 2020, no other matters have been ever referred to the
Tribunal under Section 18(A) of the Act. Therefore, the very pleading that
he was engaged to get higher compensation from the very beginning is
falsified. It is the further contention that the so called agreement dated
12.09.2020 was not executed voluntarily and it is only the cyclostyle letter
and signatures have been obtained from the illiterate litigants. Hence, the
same cannot be given any importance. Hence, it is the contention that
claiming such huge amount of fee on the value of compensation is nothing
but a champertous contract. Therefore, it is liable to be rejected.
13. It is his further contention that the so called contract is vitiated
in view of the active confidence of the plaintiff. The poor litigants, who lost
the lands, were taken on ride by the plaintiff. It is stated that in A.S.
(MD)No.51 of 2020 a sum of Rs.26 lakhs was received by the plaintiff by
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way of cheque, which is not whispered in his pleading. Out of the above
amount, only Rs.18 lakhs have been paid back to the first defendant / first
respondent in A.S.(MD)No.51 of 2020. Even in written statement, the plaint
was not specifically denied. Hence, the contract cannot be enforced.
14. In respect of the his submission, he relied upon the following
judgements:-
(1) B.Sunitha vs. Sate of Telengana and another
[Criminal Appeal no.2068 of 2017]
(2) Angayarkanni and another vs. N.Ponnuswami
and others [(2018) 0 Supreme (Mad) 2861]
(3) Dr.V.A.Babu (died) legal vs. State of Kerala and
others [CRP No.933 of 2002(E)]
(4) G.a Senior Advocate of the Supreme Court [AIR
1954 SC 557]
15. Except sending some notices, no professional duty whatsoever
was not done by the plaintiff. Hence, it is submitted that the appeal suits
are liable to be dismissed. However, the learned counsel for the respondents
submitted in fairness that the claimants are ready to pay the fees at the rate
of 1.5%, which comes around Rs.4.5 lakhs to the plaintiff. Hence, the
prayed for dismissal of the appeal.
16. When this Court posed a question to the learned counsel
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appearing on behalf of the plaintiff as to whether he is ready to receive a
sum of Rs.4.5 lakhs as fee, the learned counsel appearing for the plaintiff
submitted that his client is not willing to receive that amount and he is only
entitled to the amount as per the agreement. Such view of the matter, now
this Court has no other option except to decide the issue on merits.
17. Additional documents are also sought to be marked in C.M.P.
(MD)No.3375 of 2020 by the plaintiff on the ground that the documents,
which are sought to be marked now, are necessary documents to show that
the plaintiff had participated in all the proceedings initiated on behalf of the
land owners. The trial Court has simply rejected those documents on the
ground that those documents are not relevant to decide the issue of
payment of fee. Hence, prayed for allowing the said application.
18. The documents sought to be marked as additional documents
filed before this Court are the certified copies of the Xerox copies, which
were sought to be marked before the trial Court, but the trial Court has
rejected mainly on the ground that since the issue involved in all the suits is
with regard to payment of fee, those documents are not relevant. It is to be
noted that the only ground on which, these documents sought to be filed are
to show that the plaintiff has taken various steps to get higher
compensation for the defendants. The documents sought to be marked are
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the certified copies of Xerox copies. The trial Court ought not to have
granted certified copies of unmarked Xerox copies. Merely because those
documents were certified, that will not assume the character of primary
evidence. Even assuming that those documents are relevant, that are
sought be marked only for the purpose of proving the professional duties of
the plaintiff. This Court is of the view that the additional documents are not
relevant to prove the fact, since Ex.B7, an admitted document, clearly
indicates that the plaintiff in fact appeared on behalf of the respondents
before the authority. Accordingly, the application filed to receive additional
document is rejected.
19. In view of the above facts, now the points arise for
consideration in this in these appeals are:-
1. Whether be documents dated 12.09.2002 are voluntarily
executed and a result of free consent of the litigants?
2. Whether the claim of fee at the value of the compensation
is champertous and impermissible
3. To what other reliefs the plaintiff is entitled?
20. I have heard the learned counsel appearing on either side and
perused the entire materials available on record.
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21. The suits have been filed claiming fee as per the agreements
said to have been executed on 12.09.2002 by the litigants. The very facts
leading to filling of the suits indicate that many of the litigants appeared to
be in ignorance of the procedures, thereafter plaintiff contacted them. The
very pleadings in the plaint indicate that the land owners/defendants, whose
lands have been acquired, have not approached the plaintiff voluntarily. On
the other hand, it is only the plaintiff, who had approached the land owners
voluntarily after the acquisition proceedings that took place on 03.04.1997.
The pleadings further indicate that the plaintiff approached the poor
litigants and assured them for higher compensation and obtained signatures
for carrying out such exercise. Though Ex.B7 makes it very clear that the
plaintiff has appeared on behalf of the land owners before the Revenue
Divisional Officer in a reference under section 28(A) of the Act, except one
case, which is the subject matter of A.S.(MD)No.51 of 2020, in all other
suits, low compensation was fixed by the acquisition officer.
22. Despite the fact that the plaintiff has obtained vakalat and
obtained signatures from the claimants in other documents, no objections
whatsoever have been filed to refer the matter under Section 18 of the Act.
The documents filed on record indicate that the plaintiff has mainly
appeared under Section 28(A) of the Act before the Revenue Divisional
Officer and not before that. Thereafter, it appears that in a reference under
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Section 18 of the Act in one of the cases i.e., in A.S.(MD)No.51 of 2020,
compensation at the rate of Rs.6,480/- per cent was fixed. As no other
references were made with regard to other cases under Section 18 of the
Act, with the help of the official respondents, the land owners decided to go
for mediation. It appears that the appellant was present in that mediation.
Thereafter, the Officials after obtaining consent from the respective land
holders, settled the compensation at the rate of Rs.5,000/- per cent and the
matter had reached finality.
23. Except the proceedings under Section 28 (A) of the Act, there
are no other materials to show that the plaintiff was actively proceeded
from the very inception. If really, the plaintiff had an intention to safeguard
the interest of his clients, he should have proceeded the matter under
Section 18 of the Act. If all the cases were referred under Section 18 of the
Act, the claimants would have got more compensation. The reference Court
in one of the cases has fixed the compensation at the rate of Rs.6,480/- per
cent. In the present case, since the payment was delayed, ultimately, the
sufferers, who are land owners since have agreed to settle the matter at the
rate of Rs.5,000/- per cent at later point of time.
24. Be that as it may, as already indicated, the parties never
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approached the plaintiff voluntarily, in fact, the plaintiff has solicited the
clients. He has voluntarily solicited the clients considering the nature of the
land acquisition proceedings, wherein several people have involved and
several lands were acquired. Therefore, soliciting the clients voluntarily,
without the clients approaching the Advocate, is against the profession.
Such conduct is highly deprecated. It goes against the Rules governing
Advocates' act.
25. Much reliance was placed on Exs.A1, A6, A7, A19, dated
12.09.2002, agreement signed by the land owners in all these cases
agreeing to pay 10% of total compensation as fee to the plaintiff.
Absolutely, all these documents are typed cyclostyle documents and only the
names of the parties have been filled in by handwriting and in each of the
documents, signatures of the defendants were obtained. It is to be noted
that these documents were obtained by the present plaintiff, who is none
other than the Advocate, who volunteered himself to offer help assuring the
land owners on higher compensation. When the persons, who lost the lands
have no idea about the further proceedings, were assured of the higher
compensation by the Counsel, the Counsel normally is in dominant position
to dominate the will of the client. In fact he is in active confidence and in
fiduciary relationship. Therefore, any such documents relied upon by the
person, who was in dominant position, it is for him to show that the
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document is as a result of good faith and honest transaction.
26. The recitals in Ex.A10 referred to above, clearly indicate as if
the defendants have heard, read the contents of the document and then
signed the same. The manner, in which the cyclostyle papers have been
obtained from various defendants, makes it very clear that these documents
are not as a result of free consent and will of the defendants, who agreed to
pay such huge amount, i.e., 10% from the total compensation. If the person,
who relies the agreement, is an ordinary citizen, there will be a different
scenario. When the person is in dominant position, particularly when the
person is acting as an Advocate and assured the other side to get huge
compensation, the documents relied upon by him cannot be taken as a
result of free consent and came into effect in good faith and there was a
free will on the part of the defendants.
27. During submissions, it is also brought to the notice of this
Court, the plaintiff was originally enrolled in the year 1994. Thereafter, in
the year 2015, his name has been struck off from the role of the Bar
Counsel. The reason for that is, he is alleged to have obtained two years
corresponding B.G.L., degree and obtained one year B.L., degree. Further
all these degrees were obtained while he was in service. That was the
reason to stick off his name from the roles of Bar Council. When the person
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is not qualified to be an Advocate at the relevant point of time, claiming
huge fee as a matter of right at the rate of 10% from the total
compensation, is highly impermissible and deprecated.
28. In the judgment reported in 2009 (5) CTC 524 [M.Dhilipkumar
vs. R.Govindaraj and others], this Court has held that the Court cannot
order more fees than what has been agreed by the parties. In the above
case, the Advocate claimed 20% of award amount as fees, whereas the
claimant himself admitted that he has agreed to pay the fee only at 10%.
Only in such scenario, this Court has held that having agreed to pay the fee
at 10%, he cannot go beyond what had been agreed. The said judgment is
not applicable to the facts of the present case.
29. In the case reported in AIR 1954 SC 557 [Mr.G.A Senior
Advocate vs. unknown], in para Nos.14 and 17, this Hon'ble Supreme Court
has held as follows:-
".....14. The learned Judges in the Punjab Record case
collected all the available authorities up to the year of their
decision and they show that this kind of agreement was
condemned in Calcutta in 1874 and 1900 : In the matter of Moung
Htoon Oung (21 W.R. 297) and In the matter of an Advocate of the
Calcutta High Court (4 Cal L.J. 259); in Bombay in 1901 : In re N. F.
Bhandara (3 Bom. L.R. 102 at 113); and in Madras in 1881 and
again in 1939 : Achamparambath Cheria Kunhammu v. William
Sydenham Ganty (I.L.R. 3 Mad. 138) and In re an Advocate of the
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Madras High Court (I.L.R. 1940 Mad. 17). As the Bombay High
Court is the one in which Mr. G normally practices and as the
engagement was entered into in Bombay, we think it proper to
quote the following passage at page 113 from the judgment in the
Bombay case (In re. N. F. Bhandara) :
"I consider that for an Advocate of this Court to stipulate for,
or receive, a remuneration proportioned to the results of
litigation or a claim whether in the form of a share in the
subject-matter, a percentage, or otherwise, is highly
reprehensible, and I think it should be clearly understood that
whether his practice be here or in the mofussil he will by so
acting offend the rules of his profession and so render himself
liable to the disciplinary jurisdiction of this Court."
....17.Mr. G relied on the practice in some of the American States
where an agreement by an attorney to purchase part of the
subject-matter of the litigation is upheld. The class of cases to
which he refers are summarised in a footnote to McMicken v. Perin
(15 Law. Edn. 504 & 505). He relied on this to show that contracts
of this kind cannot be dismissed as reprehensible or morally
wrong. We do not propose to enter into this because what may be
harmless in one country may not be so in another.
We will however pause to observe that Rattigan J.
collected a large volume of American authority at pages 318-321 of
his opinion is Ganga Ram Devi Das (61 P.R. (of 1907), p. 280), to
show that even in those States where this is permitted it is
regretted and forward upon. For historical reasons obtaining there,
the practice may have come to stay however much it is regretted;
but in 1937 the American Bar Association adopted the following
canon of Professional Ethics :
"The lawyer should not purchase any interest in the subject-
matter of the litigation which he is conducting."
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In India history tells the converse tale. We see no reason why we
should import what many feel is a mistake, even in the country of
its origin, from another country and seek to perpetuate their error
here when a sound and healthy tradition to the contrary already
exists in our Bar. The reasons for exacting these high standards in
this country, where ignorance and illiteracy are the rule, are even
more important than they are in England where the general level
of education is so much higher. We hold that the conduct of Mr. G
amounts to professional misconduct and as it was committed in the
face of the Bombay view expressed by Sir Lawrence Jenkins in
1901 disciplinary action is called for.
30. In the case of DR.V.A.Babu (died) vs. The State of Kerala and
others [CRP No.933 of 2002(E), the High Court of Kerala, held as follows:-
".....At the same time, if it is revealed that the object of
the agreement is illegal or if the conditions of the agreement are
violative of the principles of equity, justice and good conscience or
the agreement discloses an unconscionable bargain, then, the
courts in India will certainly find the champertous agreement to be
illegal and refuse to enforce the same."
31. In the case of Angayarkanni and another vs. N.Ponnuswami and
others [(2018) 0 Supreme (Mad) 2861], this Court has held as follows, in
paragraph No.32:-
"32.It is also seen from the plaint that the value of the
revision petitioners 2/3rd share is Rs.2,82,66,000/-. Even assuming
that the fee was fixed at 10%, the fees works out only to a sum of
Rs.28,26,200/- and not Rs.42,71,250/- as claimed. Even if the same
is calculated at 12.5% it only works out to a sum of Rs.35,33,250/-.
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It is therefore evident that the 1 st respondent is trying to establish
a speculative claim. The 1st respondent has reduced the status of
the noble profession to that of a commercial venture. A lawyer
discharging his profession and assignment has a duty to his client,
a duty to the opponent, a duty to the Court, a duty to the Society at
large and a duty to himself. It needs a degree of probity and poise.
This Court is therefore left with no other alternative except to
exercise its Jurisdiction under Article 227 of the Constitution of
India to strike of the petition in I.A.No.532 of 2008 in O.S.NO.43 of
2004 on the file of the III Additional District Session Judge,
Coimbatore."
32. In the case of B.Sunitha vs. State of Telengana and another
[AIR (SC) 5727], the Hon'ble Supreme Court in paragraph Nos.13, 16, 18,
19, 23 and 28, has held as follows:-
"....13. One of the issues was dealt with by a single Bench
Judgment of the Madras High Court in C. Manohar versus B.R.
Poornima5. R. Banumathi, J (as her Lordship then was) held that
no presumption could arise merely by issuance of a cheque that
amount stipulated in the cheque was payable towards fee. In
absence of independent proof, issuance of cheque could not furnish
cause of action under Section 138 of the Act in the context 4 J.S.
Vasu versus State of Punjab (1994) 1 SCC 184, para 20 5 (2004)
Crl.L.J 443 of an advocate or client. The observations relevant in
the context are as follows :
The case in hand is an example of the present day trend
of the legal profession. Legal profession is essentially service
oriental. Ancestor of today's lawyers was no more than a
spokesperson, who rendered his services to the needy members of
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A.S.(MD)Nos.28 to 30 of 2020 etc., batch
the society, by putting forth their case before the authorities. Their
services were rendered without regard to remuneration received
or to be received. With the growth of litigation, legal profession
became a full time occupation. The trend of the legal profession
has changed ... profession has almost became a trade. There is no
more service orientation.
12. The relationship between the lawyer and the client is
one of trust and confidence. The client engages a lawyer for
personal reasons and is at liberty to leave him for the same
reasons. Considering the relationship between the lawyer and the
client and the present day trend in the profession, it has to be
carefully seen whether the complainant has proved that the
amount due of Rs. 43.600/- is being payable towards him. ....
16. In VC Rangadurai versus D. Gopalan 8, it was
observed that relation between a lawyer and his client is highly
fiduciary in nature. The advocate is in the position of trust.
...18. Thus, mere issuance of cheque by the client may not
debar him from contesting the liability. If liability is disputed, the
advocate has to independently prove the contract. Claim based on
7 (1955) 1 SCR 490 8 (1979) 1 SCC 308, para 31 percentage of
subject matter in litigation cannot be the basis of a complaint
under Section 138 of the Act.
19. In view of the above, the claim of the respondent
advocate being against public policy and being an act of
professional misconduct, proceedings in the complaint filed by him
have to be held to be abuse of the process of law and have to be
quashed. ....
...23. Undoubtedly, the legal profession is the major
component of the justice delivery system and has a significant role
to play in upholding the rule of law. Significance of the profession
is on account of its role in providing access to justice and assisting
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A.S.(MD)Nos.28 to 30 of 2020 etc., batch
the citizens in securing their fundamental and other rights. Can
justice be secured with the legal professionals failing to uphold the
professional ethics? This Court has even earlier expressed the
concern on the falling professional norms in the legal profession 9.
In Tahil Ram Issardas Sadarangani versus Ramchand Issardas
Sadarangani10 , this Court noted the trend of increasing element
of commercialization and decreasing element of service. In VC
Rangadurai (supra)11, this Court observed that confidence of the
public in the legal profession was integral to the confidence of the
public in the legal system. Commercialization to the extent of
exploiting the litigant and misbehavior to the extent of
browbeating the Court, breach of professional duties to the court
and the litigant on the part of some members of the legal
profession, affecting the right of the litigants to speedy and
inexpensive justice, need to be checked. This has also been
observed earlier in the decisions of this Court [O.P.Sharma vs.
State of Punjab (2011) 6 SCC 86, paras 18-23; R.D. Saxena vs.
Balram Prasad Sharma (2000) 7 SCC 264, paras 14, 28, 41,
42.28. ....
...28. Though the 131st Report was submitted in the year
1988, no effective law appears to have enacted to regularize the
fee or for providing the public sector services to utmost needy
litigants without any fee or at standardized fee. Mechanism to deal
with violation of professional ethics also does not appear to have
been strengthened. Success of administration of justice to a great
extent depends on successful regulation of legal profession in the
light of mandate under Article 39A for access to justice. Deficiency
in the working of the present regulatory mechanism has been
acknowledged by this Court in several decisions 23. Mandate for
the Bench and the bar is to provide speedy and inexpensive justice
to the victim of justice and to protect their rights. The legal system
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A.S.(MD)Nos.28 to 30 of 2020 etc., batch
must continue to serve the victims of injustice. ...."
33. Having regard to the above settled legal position, claiming
huge amount from the compensation is nothing but a champertous contract
and such nature of contract cannot be enforced. Further, as already
indicated the very contract to pay such amount has not been established.
Such agreement is not the result of free consent and voluntrariness. The
entire agreement has been typed by the plaintiff, only the signatures from
the defendants have been obtained. When the person in active confidence
and able to canvas others to get such signature got the contract from the
illiterates, such contract cannot be enforced easily, particularly, when the
relationship is such that he was in dominant position to dominate the will of
executant, who was longing for compensation. Such view of the matter, the
claim made by the appellant cannot be entertained in the eye of law.
34. As far as A.S.(MD)No.51 of 2020 is concerned, it is the
contention that he is entitled to some fee since, he had appeared before the
reference Court. It is the specific stand of the land owner /defendant that a
cheque for a sum of Rs.22 lakhs was issued in the name of the
Advocate/plaintiff and Rs.18 lakhs have been paid and the remaining
amount has not been paid. The plaintiff has admitted about the retaining of
certain amount. Further, issuance of cheque in his name for such huge
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amount has not been whispered in anywhere in the plaint. It is also one of
the conduct, which goes against the plaintiff. Such view of the matter, I do
not find any merit in these appeals. Accordingly, all these appeal suits are
dismissed and the judgment and decree made in O.S.No.22 of 2017 is
hereby confirmed. No costs. Consequently, connected miscellaneous
petitions are closed.
03.03.2021
Index : Yes/No
Internet : Yes/No
ta
Note: The Additional Government Pleader is permitted to claim fee in each
of the cases, in which he has entered appearance.
To
1.The Principal District Court,
Ramanathapuram.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)Nos.28 to 30 of 2020 etc., batch
N.SATHISH KUMAR, J.
ta
Judgment made in
A.S.(MD)Nos.28 to 30, 42 to 46, 48,
50 to 57 and 98 of 2020
03.03.2021
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