Telangana High Court
B. V.Subbaiah vs Andhra Bank 5 Others on 31 January, 2022
Bench: P Naveen Rao, G.Radha Rani
IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF
TELANGANA
********
CITY CIVIL COURT APPEAL NO.89 of 2011
Between:
B.V.SUBBAIAH, S/o Raghavaiah,
Advocate, R/o.Flat No. 201,
Vishnu Residence, Block-C,
Gandhinagar, Hyderabad
.... Appellant
And
ANDHRA BANK
Rep. by its Chairman,
Andhra Bank Buildings,
Opposite RBI, Saifabad,
Hyderabad and others.
..... Respondents
DATE OF JUDGMENT PRONOUNCED : 31.01.2022
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
&
THE HON'BLE DR. JUSTICE G.RADHA RANI
1. Whether Reporters of Local Newspapers : No
may be allowed to see the Judgments ?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals
3. Whether Their Lordship wish to : No
see the fair copy of the Judgment ?
2 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
*THE HON'BLE SRI JUSTICE P.NAVEEN RAO
&
THE HON'BLE DR. JUSTICE G.RADHA RANI
+ CITY CIVIL COURT APPEAL NO.89 of 2011
% 31.01.2022
# B.V.SUBBAIAH, S/o Raghavaiah,
Advocate, R/o.Flat No. 201,
Vishnu Residence, Block-C,
Gandhinagar, Hyderabad
.... Appellant
Vs.
$ ANDHRA BANK
Rep. by its Chairman,
Andhra Bank Buildings,
Opposite RBI, Saifabad,
Hyderabad and others.
..... Respondents
!Counsel for the appellant : Sri D.V. Seetharam Murthy
Senior Counsel appearing for
Mr. T. Sridhar.
Counsel for the Respondents : Smt. V. Dyumani, Standing Counsel
for the Andhra Bank.
<Gist :
>Head Note:
? Cases referred:
1993 (1) ALT 439
AIR 1930 PRIVY COUNCIL 270
AIR 1931 Allahabad 752 (1)
AIR 1973 GAUHATI 27
AIR 1977 SC 1778
AIR (29) 1942 Calcutta 444
(2005) 7 SCC 283
2010 (10) SCC 331
AIR 1960 SC 335
AIR (32) 1945 Madras 190
1957 An.W.R. 572
AIR 1957 A.P.950
AIR 1987 A.P. 254
1994 (2) SCC 204
3 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
THE HON'BLE Dr. JUSTICE G.RADHA RANI
CITY CIVIL COURT APPEAL NO.89 of 2011
JUDGMENT: (Per Hon'ble Dr. Justice G. Radha Rani)
This appeal is preferred by the appellant/plaintiff aggrieved
by the judgment and decree dated 9.2.2011 passed in O.S.No.77 of
2008 on the file of X Additional Chief Judge (FTC), City Civil Court,
Hyderabad in dismissing the suit filed by him.
2. For the sake of convenience, the parties are hereinafter
referred to as arrayed before the trial Court.
3.1. The case of the appellant/plaintiff in brief was that he filed a
suit for recovery of amount of 19,46,701.31 Ps. with subsequent
interest @ 18% pa. The plaintiff submitted that he was a practicing
advocate for more than 5 decades and he was a standing counsel
for various banks and companies including the defendant bank i.e.
Andhra Bank. The defendant bank entrusted several matters to the
plaintiff before various Courts, Tribunals, Forums etc. He also
appeared before the State Consumer Forum on behalf of the bank
and rendered his services. Several matters were disposed off. But
the defendant bank, though a nationalized bank, had not chosen
to pay his fees, not even the expenses incurred, in spite of several
requests made by him.
3.2. The total amounts payable by the defendant bank including
the expenses, junior fee etc. were indicated by him as under:
4 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
Sl. Details of Case Nos. in Amount payable
No. which plaintiff appeared by the Defendant
Bank ( )
1. CD No.139/1991 7,287.00
(Saidabad branch)
2. CDA No.299/92 1,250.00
(Annavaram branch)
3. CDA No.128/93 1,250.00
(Repalle branch)
4. CDA No.262/94 5,050.00
(Tadipatri branch)
5. CDA No.258/94 3,450.00
Khammam branch)
6. CDA SR No.823/93 1,250.00
against CD 331/92
(Bitragunta)
7. CD No.59/1990 6,250.00
(HMT branch)
8. CD No.64/90 7,950.00
(Anakapalli branch)
9. CD No.273/91 7,900.00
(Nakkalagunta branch)
10. CDA SR No.645/94 1,250.00
against CD No.56/93
(Ravinuthala branch)
11. CDA No.445/93 1,250.00
(Nakkalagunta branch)
12. CD No. 49/91 4,850.00
(Balanagar branch)
13. CD No.48/91 16,250.00
(Balanagar branch)
14. CD No.11/91 5,450.00
(Nizamabad branch)
15. CD No.7/90 1,250.00
(Jaladanki branch)
16. A.S. No.3009/90 76,953.00
17. OA No.1069/1996= 15,505.00
OS 1184/1990
18. O.S. 672/1979 2,442.75
19. OA 403/99 = OA 433/88 1,93,425.00
20. OS 475/91 = OA 1117/96 6,53,471.00
OA 446/99
21. OS 1211/91 40,492.56
22. OS No.301/93 (Andhra 22,640.00
Bank vs. Akruti Wood
Works)
GRAND TOTAL: 10,76,876.31
He stated that he addressed several letters to the respondent
bank demanding the fee but as there was no response from them,
having no option, filed writ petitions vide W.P.No.32469 of 1998
and W.P.No.8441 of 2004 before the Hon'ble High Court to pay the
above mentioned amounts together with interest from the dates of
default. Both the writ petitions were clubbed and the Hon'ble High
5 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
Court vide order dated 6.2.2008 dismissed both the writ petitions
giving liberty to him to file a civil suit for recovery of the amount.
Hence the suit.
3.3. He further submitted that there was no contract agreed
between them as to the amount of fee to be paid. As such, the fee
had to be paid as per the Advocates Fee Rules. If the value of the
suit was more than 10,000/-, a junior along with the senior
could be engaged and the junior fee was also payable. The
defendant bank was approbating and reprobating the pleadings. In
one breath, the defendant stated that they had already paid by
letter dated 4.2.1997, in another breath, the defendant did not
choose to reply to the letters addressed for payment dated
12.2.1997 and 4.4.1998. One of the grounds taken by the
defendant bank for refusing to pay the amount in respect of
O.S.No.433 of 1998 was that he left the country for some time. For
a short time he stayed abroad for getting treatment to his wife's
ailment. He monitored all the cases even from the USA. He
addressed a letter on 14.2.2000 from USA to the concerned
Managers of all branches including the Sultan Bazaar Branch
stating that he would conduct trial by himself. The defendant bank
claimed that they had transferred 3 suits i.e. O.S.No.433 of 1988,
O.S.No.475 of 1991 and O.S.No.1211 of 1991 to another advocate.
The defendant bank could not transfer the cases without obtaining
consent of the counsel on record. He never informed the bank that
he abandoned the profession. His services were not terminated and
no proceedings were initiated in the said regard. The defendant
bank paid fee as per Advocates Fee Rules in the matter before the
tribunal earlier. All the grounds for non-payment were taken only
6 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
when the bank was dragged to the High Court. The defendant bank
being a State instrumentality had not replied to the letters
addressed by him claiming fees and expenses which were legally
due and lawfully payable. Even the stamp expenses for vakalats
were not paid. The defendant bank was due a total sum of
10,76,876.31 Ps. on the respective dates they fell due. Since the
defendant bank illegally withheld the amount and had not paid in
spite of demand, he was entitled to claim interest @ 18% pa. Thus,
he was entitled for a total sum of 19,46,701.31 Ps.
4.1. The defendant No.5 filed written statement and the same
was adopted by the defendants 1 to 4 and 6. The defendant no 5
contended that as per the records maintained in the bank, the
plaintiff was listed as one of the counsel to be engaged to prosecute
or defend various cases filed by the bank and against the bank.
The plaintiff failed to give the details relating to the payments
already received by him while making the claim and stated the
details of the amounts paid by the various branches in various
cases. He contended that the plaintiff was away in USA and not
prosecuted the case resulting which CDA SR No.823/93 was
dismissed for default. The plaintiff had not informed the bank or
the Bitragunta Branch about his non availability due to his going
abroad, due to which the case was dismissed for non prosecution.
The interest of the bank suffered and for the said reason they
requested the plaintiff to reconsider his claim for full fee in the
matter. He further contented that Consumer District Forum was
not a regular court and elaborate procedures were not followed for
deciding the cases. The procedure followed by the Consumer
Dispute Courts was essentiality a summary procedure. The
7 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
advocates appearing there could not lay a claim of fee as applicable
to suits before Civil Courts or Appellate Courts. The A.P.Advocate
Fee Rules would not have application to consumer cases where
summary procedure was followed. The bank was paying a
reasonable fee for consumer cases depending upon the nature of
the cases to its advocates. The bank was willing to consider the
request of plaintiff for paying him as paid to the other advocates as
per the norms laid down by the bank.
4.2. There was no practice in the defendant bank to pay junior
advocate fee. The bank never agreed to pay junior advocate fee. It
was evident from the letters dated 30.7.1991 and 8.8.1991. As
per Rule 16 of A.P.Advocate Fee Rules 1990, if the suit was
disposed off without contest, the fee payable was 50% of the fee
payable in the suit. In other words, in ex-parte decree the advocate
was entitled to only 50% of the fee. D3 paid the eligible fee for the
ex parte decree, as per Rule 16 of AP Advocate Fee Rules 1990 in
O.A.No.1069 of 1996. Towards travelling expenses and stay at
Bangalore, the plaintiff claimed 4,480/-. D3 requested the
plaintiff to submit proof of visit to Bangalore as well as related bills
for stay and travel. In the absence of evidence, the plaintiff was not
entitled to claim the said expenses. The plaintiff left for USA in
1999 and did not attend O.A.No.403 of 1999 and abandoned the
case even before commencement of trial. Under the said
circumstance, D5 was constrained to entrust the said case to
another approved panel advocate of the bank, who conducted the
trial and the said OA was decreed. The plaintiff received more than
50% of the fee even before the commencement of the trial. He was
not entitled to any further fee and on the other hand was liable to
8 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
refund the excess fee which he received over and above 50% of the
fee payable as per the AP Advocates Fee Rules.
4.3. He contended that O.S.No.475 of 1991, O.S.No.1211 of 1991
were entrusted by D5 to another bank panel advocate to protect
the interest of the bank as the plaintiff abandoned the said cases
before commencement of trial, as such he was not entitled to any
further fee. He further contended that in A.S.No.3009 of 1990, the
case was entrusted to plaintiff to avail his personalized services
looking into the stakes involved and the complexity of the matter.
Unfortunately the plaintiff had not prosecuted the first appeal and
entrusted the matter to his junior colleague without informing the
bank or obtaining concurrence of the bank. The advocate to whom
the first appeal was entrusted did not contact the bank, as a result
the appeal was dismissed by the High Court exposing the bank to
pay the decretal amount, the bank interest was not properly
safeguarded by the plaintiff. The plaintiff ought to have informed
the bank about his non-availability at Hyderabad. Since he left to
USA for a longer period, the case would have been prosecuted
through various other agencies available to the bank.
Unfortunately the plaintiff had not taken the bank into confidence.
Hence the bank would feel it justified in not setting the full fee in
favour of plaintiff in A.S.No.3009 of 1990.
4.4. In the suit filed against M/s. Akruthi Wood Works, it ended in
compromise when the matter was posted for written statement of
D1. The defendant bank paid more than 50% of the fee as per Rule
16 of the AP Advocate Fee Rules and the plaintiff was not entitled
9 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
to any further fee and on the other hand was liable to refund the
excess fee paid.
4.5. He further contended that the Hon'ble High Court had not
condoned the period of limitation while dismissing the writ
petitions. The suit filed for recovery of the alleged fee was barred by
limitation and liable to be dismissed on the said ground. The
plaintiff was claiming fee for the work not done by him. The
plaintiff was not entitled to claim fee in respect of the suits or
proceedings conducted by other advocates. The plaintiff was not
entitled to claim interest on the alleged fee for the work not done
by him and prayed to dismiss the suit.
5.1. The plaintiff filed a rejoinder contending that if the
defendants pleaded payment either in part or in full, the burden of
proof was upon them to establish the factum of payment. Some
payments made by the defendants might not have been noticed as
the plaintiff's junior colleagues were looking after the same and the
plaintiff never bothered to look into them. Any payment made, not
innocently noticed might be given credit. He never abandoned any
case without taking steps safeguarding the interest of the bank.
Not a single matter suffered on account of default on his part
during the period from 1990 to 2000 or at any time during the long
period of 25 years when his services had been engaged by the
bank. For the first time, it was falsely stated that he abandoned
the matters. It was only a ruse or pretext for their conduct of
engaging new advocates. It was fundamental that before any
advocate on record was removed, they must be given notice and
give justifiable reasons for withdrawing the case from him.
10 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
Transferring the case to another advocate means removal and the
defendants did not have minimum courtesy at least to inform him
that they were transferring the case to another advocate. He would
have voluntarily withdrawn from the file if they had informed him
that they were not satisfied with his work. His temporary absence
from the country would not mean that he was not returning to the
country and would not attend the cases. He was entitled to full fee
as per the rules. Without the consent of advocate on record,
another legal practitioner could not take up the matter. It was
unethical to accept a brief without consent from the advocate on
record. The advocates were not servants of the bank or their sub-
ordinates to expect to work under their supervision and orders.
The bank was not the master of the advocate. The advocate need
not take the consent of the client whenever he leaves the place like
a salaried sub-ordinate of the bank. He reserves his right to take
appropriate action for the criticism and defamatory statement
made by the officers of the bank against him in the suit as well as
in the writ petitions.
5.2. He further contended that the claim was not barred by
limitation. No such plea was taken by the bank in the writ
petitions and there was no occasion for the High Court to consider
the aspect of limitation. The contention of the defendants that the
payment of fees was hit by the period of limitation would speak
volumes of the attitude of the bank in payment of fees for the
services rendered by the advocates. The conduct of the bank in
postponing the payment without refusal and ultimately taking the
plea of limitation as a ground would only demonstrate the
cantankerous attitude of the bank. The advocate making trips to
11 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
USA or other places was not the concern of the defendant bank. It
only would show the ill natured attitude of the officer. The bank
employees would not wait for a day for their payments but making
advocates wait without payment for years together, ultimately to
state that the claim was barred by time was regrettable. The bank
kept the advocate waiting promising payment, as such it was
estopped from pleading otherwise. Limitation would start only from
the date of refusal and prayed to decree the suit.
6. Basing on the above pleadings, the trial court settled the issues
as follows:
1. Whether the plaintiff is entitled to recover the suit
amount as prayed for?
2. Whether the suit claim is barred by limitation?
3. To what relief?
7. The plaintiff examined himself as PW1. Exs.A1 to A44 were
marked on his behalf. DW1 was examined on behalf of defendants.
Exs.B1 to B4 were marked on their behalf.
8. On considering the evidence and on hearing both the counsel
on record and the citations relied by both the counsel, the trial
court dismissed the suit without costs holding that the suit was
barred by time and that the plaintiff was not entitled for recovery of
suit amount.
9. Heard the learned senior counsel Sri D.V.Seetharam Murthy
for the appellant and the learned counsel for the respondents.
10. Learned senior counsel contended that the trial Court ought
to have seen that the entire contest was that though the advocate
12 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
was entitled for the fee as per the Advocates Fee Rules, the plaintiff
abandoned the cases and hence not entitled for full fees, the trial
Court ought to have understood the principle from the various
pronouncements that as long the advocate continued on record he
should be paid the full fees, the advocate would continue till he
was terminated by due process of law or till he consented for
another advocate to appear for conducting the case. In fact there
was a bar for any other advocate to appear without the consent of
the advocate on record. Admittedly no consent of the plaintiff was
taken, nor was his authority terminated by any proceeding in any
Court, as such he was entitled for full fees as per the Advocates
Fee Rules. The statement that permission by the Court implied was
erroneous.
10.1. He would contend that the trial Court failed to see that in
cases at Sl.Nos.1 to 13 nothing was paid either towards expenses
or fees and in the cases at Sl.Nos.16 to 22 only part payments were
made.
10.2. He would further contend that the trial Court went wrong
in holding that the suit claim was barred by limitation. Article 18
would not apply. Only Article 113 would apply and limitation
would start only if the demand for fee was refused. The trial Court
ought to have seen that the plea of limitation was a later thought,
just a means to escape the liability. The provisions of Limitation
Act and Articles had not been correctly understood by the Court.
The suit was filed without any loss of time on the next day of
dismissal of the writ petitions. The trial Court has not considered
Section 14 of Limitation Act.
13 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
10.3. The Court ought to have seen that the bank officers were
promising to pay fee and at no point of time, there was any refusal.
In the absence of refusal for the standing counsel, the period of
limitation would not begin to run. The learned senior counsel for
the appellant contended that the plea of limitation was not taken
by the respondents/defendants in their counters filed in the writ
petitions. Limitation would start only from the date of denial by
the defendants. The letter addressed by the defendants would not
disclose that they had rejected the claim of the plaintiff in total.
They had only disputed the quantum of fee claimed by the plaintiff,
but never raised the plea of limitation. The right to sue would
accrue to the plaintiff only when there was a clear and unequivocal
denial of his right by the defendant. The defendant had not
expressed his denial till filing of the counter in writ petitions on 25-
04-2007. The suit was filed by the plaintiff on 07-02-2008 i.e.
within three years of the denial of his right by the defendants in
claiming the fee, as such it was filed within the time. The trial
Court erred in coming to the conclusion otherwise.
10.4. He would contend that the learned Judge had not even
included the memo of fees and costs in the decree. He had not even
considered equities and the principles of justice. The findings were
patently incorrect and prayed to allow the appeal.
10.5. Learned senior counsel placed reliance on following
decisions:
i) P.Ram Reddy v. The Shipping Corpn. of India Ltd.,
Bombay1;
ii) Mt. Bolo v. Mt. Koklan and others2;
1993 (1) ALT 439
14 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
iii) (Panchaiti Akhara Bara Udasi) Nanak Sahi Kydganj v.
Naziruddin and another3;
iv) Kakodonga Tea Estate v. J.N. Saikia4
11. The learned counsel for the defendants contended that the
suit is barred by limitation. It is instituted nearly 8 years after the
judgment in O.S.No.1211 of 1991 and nearly 10 or more years
after the results of other cases. The fee was claimed beyond three
years after the result of the cases. Further, the suit was not filed
within three years of the termination of his services in the
respective cases. According to learned counsel, as per Article 18 of
the Limitation Act suit has to be instituted within three years on
completion of work and when payment was due. The appellant
had knowledge about the approximate dates of his termination of
services in each and every individual case and he was aware that
the respondents had not replied to his notices demanding fee in
cases. The same would amount to deemed denial.
11.1. She would submit that Article 113 of the Limitation Act has
no application and on the claim of appellant Article 18 would
apply. The trial court rightly came to the conclusion that the suit
was barred by limitation.
11.2. Learned counsel for the defendants relied on following
decisions:
(i) Mrs.Moti Natwarlal and others v. M/s.Raghavayya
Nagindas and Co.5;
(ii) Sachindra Nath Chatterjee v. Bengal Nagpur Railway
Co. Ltd.6
AIR 1930 PRIVY COUNCIL 270
AIR 1931 Allahabad 752 (1)
AIR 1973 GAUHATI 27
AIR 1977 SC 1778
AIR (29) 1942 Calcutta 444
15 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
12. In the light of the rival contentions, the point for
consideration is:
"Whether the judgment of the trial court is in
accordance with law, evidence and probabilities of the
case and whether there are any reasons to set aside the
same? "
13. To appreciate submissions of learned counsel, it is considered
necessary to understand scope of Articles 18 and 113 of the
Limitation Act 1963.
14. Article 18 is under Part-II of Schedule pertaining to suits
relating to contracts. It reads as follows:
Description of suit Period of Time from which
limitation period begins to run
18. For the price of work Three years. When the work is
done by the plaintiff for done.
the defendant at his
request where no time has
been fixed for payment.
Article 113 comes under Part-X of the Schedule pertaining to
suits where there is no prescribed period of limitation. It reads as
follows:
Description of suit Period of Time from which
limitation period begins to run
113. Any suit for which Three years. When the right to
no period of limitation is sue accrues.
provided elsewhere in the
schedule.
It is apparent from the reading of both Articles that though
the period of limitation is three years, but under Article 18 it
begins to run when the work is done and under Article 113 it
begins to run when the right to sue accrues.
15. Whether a professional activity can be considered as a
commercial activity and the term 'price' is synonymous with the
16 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
term 'fee' came up for consideration before the Hon'ble Apex Court
in two cases relied on by the learned senior counsel for the
appellant.
15.1. In M.P. Electricity Board and others v. Shiv Narayan and
others7, the Hon'ble Apex Court held that:
"a professional activity must be an activity carried on by
an individual by his personal skill and intelligence.
There is a fundamental distinction, therefore, between a
professional activity and an activity of a commercial
character. The word "commerce" is a derivative of the word
"commercial". The word "commercial" originates from the word
"commerce". The expression "commerce" or "commercial"
necessarily has a concept of a trading activity. Trading activity
may involve any kind of activity, be it a transport or supply of
goods. Generic term for almost all aspects is buying and
selling. But in legal profession, there is no such kind of buying
or selling nor any trading of any kind whatsoever. Therefore,
to compare legal profession with that of trade and business is a
far from correct approach and it will totally be misplaced."
(emphasis supplied)
15.2. In Dharmarth Trust, Jammu and Kashmir, Jammu and
others v. Dinesh Chander Nanda8, the Hon'ble Apex Court held
that:
"11. The term `price', as appearing in Article 56, is to be
understood in common parlance/ordinary or normal sense. It
takes its colour from the meaning attached to the term `price'
in the Articles immediately preceding `Articles 52 to 55'. `Price'
does not cover the services provided by the professionals
such as Architect, Lawyer, Doctor etc., as professionals
charge a `fee'. Also, the term `work done' in Article 56 will
not be applicable to professionals such as Architect,
Lawyer, Doctor etc. as these professionals render services
to their clients. The remuneration of a professional is in
the form of a `fee' and therefore, it cannot be said that
the professional earns a `price'. In common usage, the
term `price' refers to goods sold. For illustration, the term
`price' is defined in Section 2 (10) of the Sale of Goods Act,
1930 as "price" means the money consideration for a sale of
goods.
18. ....The word `price' was never intended to be used
synonymously with the word `fee' and, therefore, the fee
charged by an Architect for services rendered by him
would not be covered under Article 56 of the Act. In the
case on hand, the Trial Court as well as the High Court have
made a clear distinction between the terms `work done' and
`services'. The `work done' would refer to work done by masons
such as land filling or engineering projects etc."
(emphasis supplied)
(2005) 7 SCC 283
2010 (10) SCC 331
17 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
15.3. The Hon'ble Apex Court extracted the judgments of the High
Court of Allahabad and the High Court of Gauhati and explained
the difference between the two Articles, as under:
"The High Court of Allahabad in Kaviraj Baroda Kant Sen vs.
Court of Wards in Charge of Baraon Estate, [AIR 1931 All. 752],
as early as in 1931, while interpreting Article 56 of the Indian
Limitation Act, 1908 has stated as follows:
".....it is difficult to apply Article 56 which relates to a
suit for the price of work done by the Plaintiff for the
Defendant at his request. No special article appears to be
applicable to a claim by a medical practitioner for
recovery of his fees for attendance on a patient. The
residuary Article 115 which applies to all breaches of
contract, would therefore apply, for there was
undoubtedly a contract, at east, an implied one, to pay
the fee, and the non-payment of that fee amounted to a
breach for which the plaintiff would be entitled to
compensation. In Harish Chander Surmah vs Brojonath
Chackerbutty [1870] 13 W.R. 96 a suit for recovery of
compensation for the fees of a medical practitioner was
held to lie under the corresponding article of
the Limitation Act then in force"
24. The High Court of Gauhati in Kakodonga Tea Estate vs.
J.N. Saikia, [AIR 1973 Gau. 27], has also held that "a suit to
recover unpaid professional fees by a Chartered Accountant
falls under Article 113 and not under Article 18 or Article
55...". The High Court of Gauhati further specifically held as
follows:
"8. It is easy to assume that very deep thought must have
been devoted by the Legislature in giving shape to the
various Articles of the old as well as the new Limitation
Act. It is equally legitimate to assume that the words of
each Article must have been used in their commonly
accepted connotation unless contrary intention is
expressed in the body of the Act just as is apparent
from Section 2 wherein certain expressions have been
defined to mean something less or more than what their
commonly known attributes are. The expression "price"
used in Article 18 must, therefore, be taken to convey the
commonly accepted sense implicit in it. According to the
Chambers Twentieth Century dictionary the word "price"
means: the amount, usually in money, for which a thing
is sold or offered; that which one forgoes or suffers for
the sake of or in gaining something: money offered for
capture or killing of anybody: that for which one can be
bribed; betting odds; values. In common parlance what
a client pays to a professional person like an
Advocate and a CA is described as "fee" and not
"price". Likewise, what a patient pays to a medical-
man for the services rendered to him by the latter is
called "fee" and not "price". Therefore, it would be
unduly straining the expression "price" used
in Article 18 if it were held synonymous in
connotation with the fee paid to an Advocate, a
Medical-man or a CA. For this reason alone, I
believe, Article 18 does not provide for a suit for the
professional fee of the nature just stated....."
25. We agree with the ratio laid down by the Allahabad and
Gauhati High Courts relating to Article 56 of the
Indian Limitation Act, 1908 that the term "price of work
done" cannot be made applicable to professions where the
18 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
professionals merely provides services for a "fee". We
accept the claim of the respondent that the profession of
an Architect is one such service, hence Article 56 is not
applicable to the present case. Both the Trial Court as well
as the High Court has arrived at correct conclusion."
(emphasis supplied)
15.4. Learned counsel for defendants placed heavy reliance on
Mrs.Moti Natwarlal (supra) to contend that claim of plaintiff is
barred by limitation. We have carefully gone through the said
judgment. In Mrs. Moto Natwarlal, the question for consideration
was whether the bill of costs of a Solicitor or Attorney, who had
rendered professional services to his client in the City Civil Court
could be taxed by the Taxing Master, Original Side of Bombay High
Court, and if so, whether it can be taxed on the original side scale.
The issue concerned with scope of Rules 569 and 573 of 'The Rules
of the High Court of Bombay (Original Side), 1957". Three
contentions were raised by the appellants in the High Court: (1) a
Solicitor's bill for costs and remuneration in respect of the work
done by him in the City Civil Court cannot be taxed by the Taxing
Master, Original Side, High Court; (2) the bill, in any event, cannot
be taxed according to the scale of fees applicable on the Original
Side as between as Attorney and client; and (3) the recovery of the
amount taxed by the Taxing Master is barred by limitation under
Art.113 of the Limitation Act, 1963. The High Court rejected all
these contentions by its judgment dated October 8, 1974. From
paragraph-5 of the judgment of Hon'ble Supreme Court, it is
noticed that appellant did not press the third point regarding
limitation and Hon'ble Supreme Court observed as, "rightly so".
Thus, issue as arising in this case was not considered by Hon'ble
Supreme Court. No such rules were in vogue applicable to the
facts of the present case. In fact, the Hon'ble Apex Court had not
19 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
discussed with regard to the applicability of Article 18 of the
Limitation Act for recovery of the fees of the attorneys and clearly
stated that Article 113 of the Limitation Act is applicable to the
suits. As such, the said judgment is distinguishable on the facts
and do not come to the aid of defendants.
15.5. It is thus beyond pale of doubt that 'price of work done' is
not applicable to professionals and therefore Article 18 of
Limitation Act is not attracted to the claim of plaintiff.
16.1. The plaintiff in his evidence stated that he issued notices to
the defendants demanding the amounts due to him giving the list
of cases and particulars of the amounts due to him vide letter
dated 20.03.1996 marked as Ex.A1. He stated that apart from the
Managers and concerned staff, the Assistant General Manager also
promised on several occasions and undertook to pay the amounts.
The amounts due to him in the matters before the Consumer
Forum was 71,937/-. He issued a reminder vide letter dated
09.09.1996, the office copy of which was marked as Ex.A2. The
Assistant General Manager and the Chairman were informed
requesting payments vide letter dated 09.06.1998 and the copy of
the letter so addressed was marked as Ex.A3. The postal receipts
and acknowledgments were marked as Exs.A4 and A5.
16.2. He claimed fee due to him in A.S.No.3009 of 1990 vide letter
dated 14.06.1991, the office copy of which was marked as Ex.A6.
The Manager gave a reply on 08.08.1991 vide Ex.A8 stating the
Junior Advocate's fee would not be paid as the suits filed by the
Bank would not involve any complicated issues warranting the
assistance of Junior Advocate and not to engage the services of the
20 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
Junior Advocate at their cost. The plaintiff stated that he had not
claimed Junior Advocate's fee from then onwards, but for the
Junior Advocate's services till then engaged, fees had to be paid
and accordingly replied in his letter dated 12.08.1991, the copy of
which was marked as Ex.A9. The bank addressed a letter to him
on 13.08.1991, which was marked as Ex.A.10 enclosing a pay
order for 82,479/- towards the payment of fee in A.S.No.3009 of
1990 (NTR Stadium Committee case, Gudiwada). The plaintiff
wrote on 17.07.1996 to the defendants that he was still due an
amount of 76,953/- in the said case. The same was marked as
Ex.A11. The bank addressed a letter to the plaintiff on 04.02.1997,
marked under Ex.A12, stating that the pay order for
82,479/- included the above amount of 76,953/-. The
plaintiff addressed a letter to the defendants on 12.02.1997
clarifying about the payments made and due to him in
A.S.No.3009 of 1990 vide Ex.A.13 stating that the Senior
Advocate's fee would come to
1,53,906/- out of which half of the amount would come to
76,958/- and the same was only sent and the balance equal
amount was payable. He issued another reminder with regard to
the fee in the said case vide Ex.A16 dated 14.07.1998. He again
wrote on 26.08.1998 vide Ex.A17 demanding payment of
76,958/-, the balance amount due to him in A.S.No.3009 of
1990.
16.3. He further stated that he addressed a letter on 10.03.1999
for payment of fee and expenses in O.A.No.1069 of 1996 vide
Ex.A19. He addressed a letter dated 03.10.2000 vide Ex.A31
reminding the defendants that an amount of 88,613/- was due
21 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
towards his fee in O.A.No.1069 of 1996. The defendants gave a
reply on 25.11.2000 enclosing a DD for 18,488/- stating that the
suit was decreed ex parte and the advocate was not entitled for
junior advocate fee and the ticket numbers in proof of visiting
Bengaluru and incurring expenses was not filed. He addressed
another letter dated 02.02.2001 stating that the said suit was not
decreed ex parte and the total fee payable to the Senior Advocate
was 30,808/- but only an amount of 18,488/- was sent on
25.11.2000 with a covering letter that the suit was decreed ex
parte and that he was not paid expenses for his visits to Bengaluru
for arguing the matter before the Debt Recovery Tribunal at
Bengaluru and an amount of 15,505/- was due in the said suit.
17. Thus, the evidence of PW.1 would disclose that he
continuously addressed letters to the defendants claiming the
amounts of fee due to him in various cases. The defendants had
not denied his entitlement of fee in the said cases but objected it
on other grounds. Vexed with the attitude of the defendants, the
plaintiff had filed Writ Petitions vide W.P.No.32469 of 1998
claiming an amount of 1,48,890/- due to him in A.S.No.3009 of
1990 and filed W.P.No.8441 of 2004 claiming an amount of
9,27,986.31 Ps. due to him in six other cases. The
defendants/respondents had filed counters in both the WPs on
25.04.2007 denying the claim of the plaintiff. Both the writs were
disposed off by a common order dated 06.02.2008 dismissing the
same on the ground that no writ petition can lie for recovery of
amount due towards professional fee and gave liberty to the writ
petitioner/plaintiff to approach the civil court for recovery of the
said amount. The contention of the respondents/defendants was
22 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
that the High Court had not condoned the time taken for
prosecuting the writ petitions.
18. We are of the considered opinion that the trial Court has
misdirected itself in appreciating the issue of limitation. The trial
Court also erred in observing that in some of the cases the plaintiff
was removed in the middle of the suits and some other Advocates
were engaged to conduct the said cases, as such the plaintiff must
be having knowledge of his removal and the limitation would start
from the said date.
19.1. In Mst. Rukhmabai v. Lala Laxminarayan and others9,
the Hon'ble Apex Court held that knowledge was not sufficient to
attract the provisions of the Limitation Act and limitation would
start to run only when there was effectual threat of infringement to
his right. It held that:
"There can be no 'right to sue' until there is an accrual of
the right asserted in the suit and its infringement, or at least a
clear and unequivocal threat to infringe that right, by the
defendant against whom the suit is instituted.
Where there are successive invasions or denials of a
right, the right to sue under Art.120 accrues when the
defendant has clearly and unequivocally threatened to infringe
the right asserted by the plaintiff in the suit. Every threat by a
party to such a right, however ineffective and innocuous it may
be, cannot be considered to be a clear and unequivocal threat
so as to compel him to file a suit. Whether a particular threat
gives rise to a compulsory cause of action depends upon the
question whether that threat effectively invades or jeopardizes
the said right."
19.2. Same is the view taken by this Court in P.Ram Reddy
(supra). This Court held:
"Period of limitation prescribed under the Limitation Act in a
suit for recovery of professional fee is three years as provided
under Article 113 of the Limitation Act and the cause of action
would arise on the date the respondent had unequivocally
denied the petitioner's right to claim the amount."
AIR 1960 SC 335
23 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
19.3. In Mt. Bolo (supra), the Privy Council has also expressed
same view. It held that:
"There can be no right to sue until there is an accrual of the
right asserted in the suit and its infringement or atleast a clear
and unequivocal threat to infringe that right by the defendant
against whom the suit is instituted."
20. With regard to the claim of the plaintiff for recovery of his
professional fees in consumer cases for an amount of
71,937/-, the respondents/defendants contended that
A.P.Advocates Fee Rules were not applicable to the cases filed
before the Consumer Forum as such, the plaintiff could not claim
the fee basing upon the A.P.Advocates Fee Rules. But, when there
was no specific contract between the plaintiff and the defendant
bank with regard to the payment of the fee, it was only the A.P.
Advocates Fee Rules which would govern the payment of fee. As
per the defendants, the plaintiff was listed as one of the counsel
engaged by them to prosecute or defend the cases on their behalf.
Thus, there must be several advocates engaged by them to argue
the matters before the Consumer Forums also and must be paying
fee to them. Though the defendants stated in their reply that they
were paying reasonable fee for consumer cases depending upon the
nature of the cases to its Advocates and bank was willing to
consider the request of the appellant for paying him as being paid
to other Advocates as per the norms laid down by the bank, failed
to adduce any evidence to show the amount of fee they were paying
to the other Advocates on record who appear before the Consumer
Forum.
24 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
21. Though it is stated that the Bank had never shown any
disinclination to settle the fee of the appellant in the consumer
matters entrusted on behalf of the bank, failed to pay the said
amount and dragged the appellant to the extent of filing a writ
petition before this Court and even after that failed to settle the
issue. The contention of the appellant was that he was not paid
even a single pie with regard to the said cases. When the
respondents were claiming that they paid certain amounts, the
burden would lie upon them to prove that the amounts were in fact
paid by them as contended. The defendants examined DW.1, but
had not adduced any evidence in proof of the payments made by
them. Hence, they failed to discharge the burden laid upon them to
show that the amounts were in fact paid to the appellant in the
said consumer dispute cases.
22. The other contention taken by the learned counsel for the
respondents/defendants was that the plaintiff abandoned the
cases in the middle and left to USA as such they were constrained
to hand over the cases to some other Advocates and as such the
plaintiff was not entitled for payment of fee for the work not done
by him. The learned senior counsel for the appellant/plaintiff
refuted the said argument and contended that the Advocate would
continue on record till he was terminated by due process of law or
till he consented for another Advocate to appear for conducting the
case and there was a bar for any other Advocate to appear without
the consent of the Advocate on record and admittedly, no consent
of the appellant was taken nor his authority was terminated by any
proceedings in any Court and as such the plaintiff was entitled for
full fee as per the Advocates Fee Rules.
25 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
23. Learned senior counsel for the appellant contended that
Order 3 Rule 4 CPC would empower the counsel to continue on
record until the proceedings in suit were duly terminated.
23.1. Learned senior counsel relied on following decisions:
(i) A.V.Sundaramurthy Chettiar v. S.Muthiah Mudaliar
and another10;
(ii) Sankara Venkatappayya v. Vijayawada Municipality,
by Commissioner11;
(iii) Kodanda Ramaswami Vari Devastanam and others v.
D. Seshayya and others12;
(iv) Damodardass Agarwal and others v. R. Badrilal and
others13
24.1. In A.V.Sundaramurthy Chettiar (supra), Madras High
Court held:
"Advocate was entitled to be paid his full fee and a
change of advocate could not be sanctioned until satisfactory
arrangements were made to that end.
In the absence of misconduct on the part of the
advocate engaged by a client to appear in a case, the client is
not entitled to the sanction of the Court for a change of the
advocate who has had charge of the case till then without
making a satisfactory arrangement to pay the advocate."
24.2. In Sankara Venkatappayya (supra), this Court held that:
"The right to fee of a counsel is not dependent on the quantum
of work that he is actually called upon to do in the Court. In a
number of cases, counsel are not called upon to plead in Court
when they appear for a defendant or a respondent; it is their
liability to act and plead under the vakalatnama that entitles
them to payment for services which they are bound to render
when called upon to do so."
24.3. In Kodanda Ramaswami Vari Devastanam (supra) this
Court held:
"Order III, Rule 4, does not give an absolute right to a pleader
to appear in a Court till the termination of the proceedings, but
only provides in what manner should a pleader be appointed
AIR (32) 1945 Madras 190
1957 An.W.R. 572
AIR 1957 A.P.950
AIR 1987 A.P. 254
26 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
and till what time the appointment will be in force. The rule,
in so far as it governs the continuance of a vakalat, is primarily
concerned not so much with the right of an advocate as with
the right of the court to consider that the client, who appears
by a pleader in any proceedings continues to be represented by
him until the appointment which is filed in court is determined
in the manner specified in the rule."
24.4. In Damodardass Agarwal (supra), this Court considered
the aspect that leave of court is necessary for termination of
appointment of an advocate and leave of court is not a mere
formality. The Court after examining the provisions of Order III
Rule 4 and Rule 20-A of Civil Rules of Practice observed that:
"32. We shall examine the first question. For that we must look
O. 3, R. 4 sub-rule (2), C.P.C. and also R. 20-A, Civil Rules of
Practice.
"Every such appointment shall be filed in Court and shall, for
the purposes of sub-rule (1), be deemed to be in force until
determined with the leave of the Court by a writing signed by
the client or the pleader, as the case may be, and filed in
Court, or until the client or the pleader dies, or until all
proceedings in the suit are ended so far as regards the client."
(Explanation. - Omitted) "Rule 20-A of Civil Rules of Practice:
Consent for change of vakalat:- An advocate or pleader,
proposing to file an appearance in a suit, appeal or other
proceeding in which there is already an advocate or pleader on
record, may not do so unless he produces the written consent
of such advocate, or pleader or where consent of such
Advocates, or pleader is refused, unless he obtains the special
permission of the Court."
A perusal of these rules discloses that if a practitioner who
filed vakalat on behalf of his client has not given consent, leave
of the Court is necessary to terminate his appointment as an
advocate in the case. Though O. 3, R. 4 is silent about the
power of the Court to determine any question disputed
between the parties courts have construed this provision
empowering the Court to pass an appropriate order while
granting leave to the client to terminate the appointment of his
counsel. The enquiry is clearly summary and the Court cannot
make an elaborate adjudication on seriously disputed
questions of fact and law. There is consistent practice in this
Court whereunder the Court is empowered to pass appropriate
order directing the payment of fees to the advocate before his
services as an advocate are terminated.
A Division Bench of the Madras High Court in Sundaramurthy
v. Muthjah Mudaliar, AIR 1945 Mad 190 held that "in the
absence of misconduct on the part of the advocate, the client is
not entitled to the sanction of the Court for a change of the
advocate without making a satisfactory arrangement to pay the
advocate who has had charge of the case." Hence the client
cannot without the leave of the Court terminate the services of
his advocate. Hence even if the advocate reports no
instructions at one stage, he is entitled to prosecute the
proceedings at a later stage so long the Court has not passed
27 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
an order terminating his services and in the absence of an
order discharging an advocate the advocate is deemed to
continue to represent his client."
25. From the above precedent decisions, it is apparent that an
advocate was entitled to be paid his full fee and a change of
advocate could not be made without the permission of the court
and the right to fee of a counsel was not dependent on the
quantum of work that he actually did in the Court.
26. From the foregoing discussion, the contentions of the learned
counsel for the defendants are not on sound grounds. The trial
Court erred in not appreciating the precedent decisions of the
Hon'ble Apex Court, this Court and the High Courts of other
States.
27. Before parting with the case, it is considered necessary to
make an observation about the conduct of the defendants, a
Nationalized Bank, towards their Standing Counsel in respect of
his financial claim by adopting dilatory tactics and raising
technical pleas to avoid payments and making him to take
recourse to prolonged litigation by wasting the time not only in
terms of money but also the valuable time of the counsel and the
court is highly reprehensible. The relationship between the lawyer
and his client is one of trust and confidence. The client engages a
lawyer for personal reasons and he is at liberty to leave him also
for the same reasons. But the lawyer, in turn, is not an agent of
his client and is a dignified, responsible spokes person.
28 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
28. Advocate is essentially an advisor to his client as laid down
by the Hon'ble Apex Court in R.D. Gupta and others v. State of
U.P. and others14 as under:
"Legal profession is essentially a service oriented profession.
The lawyer of the Government or a public body is not its
employee but is a professional practitioner engaged to do the
specified work though he is on the full-time rolls of the
Government and the public bodies are described as their law
officers. Being a responsible officer of the court and an
important adjunct of the administration of justice, the lawyer
also owes a duty to the court as well as to the opposite side.
He has to be fair to ensure that justice is done. He demeans
himself if he acts merely as a mouthpiece of his client. This
relationship between the lawyer and the private client is
equally valid between him and the public bodies."
29. Thus, the defendants denying the professional fee of their
Standing Counsel and taking the plea of limitation itself is a
degrading act on their part.
30. Hence, the Appeal is allowed setting aside the judgment and
decree dated 09.02.2011 passed in O.S.No.77 of 2008 by the
X Additional Chief Judge (FTC) City Civil Court, Hyderabad,
holding that the appellant/plaintiff is entitled to recover the suit
amount as prayed for with interest at 9% per annum from the date
of institution of the suit till the date of realization. Pending
Miscellaneous petitions, if any, shall stand closed.
__________________________
JUSTICE P.NAVEEN RAO
__________________________
JUSTICE G.RADHA RANI
Date: 31.01.2022
KTL/KKM
1994 (2) SCC 204
29 PNR,J & Dr.GRR,J
CCCA No.89 of 2011
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
THE HON'BLE Dr. JUSTICE G. RADHA RANI
CITY CIVIL COURT APPEAL NO.89 of 2011
Date: 31.01.2022
KTL/KKM
