It is in that regard that the Solicitor has
drawn my attention to the Gujarat High Court judgment in the case of
Alokik Trading and Investment Pvt. Ltd. & 3 Ors Vs. C.R. Iyyer
2000(1) GLR 495. It shows how the Court has a dual duty – to
protect a litigant who desires to change the Advocate and to protect
the Advocate for payment of his just fees and not relegate him to
filing a separate suit. The right of discharge must, therefore,
complement the right to fees.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER ORDER NO.559 OF 2012
IN
SUIT NO.1839 OF 1988
Arvind N. Savani Plaintiff
V/s.
Maganlal Savani & Ors. Defendants
CORAM : MRS. ROSHAN DALVI, J.
Date of pronouncing the Order : 10
th
September, 2012
ORDER
1. This Chamber Order was taken out by defendant No.1
before the Prothonotary and Senior Master of this Court for obtaining
discharge of his Solicitors and for handing over papers and
proceedings. The Papers and proceedings have already been handed
over to him by the firm of Solicitors (the firm) representing him. That
matter has not been disputed.
2. The Defendant No.1 contended in the Chamber Order that
the firm has not given him the NOC for filing the Vakalatnama of the
new advocates, whom defendant No.1 seeks to appoint, on the ground
of non payment of certain outstanding fees as shown in the
correspondence between the parties. The learned Prothonotary and
Senior Master of this Court has considered the contentions of the2 CHOL. No.559_2012
parties and held that the firm stood discharged by his order dated 25
th
July, 2012.
3. It is that order which is sought to be challenged by
praecipe filed before this Court.
4. It is contended by the firm that as officers of the Court
their right to obtain reasonable and legitimate fees charged by them
to their client must be protected by the Court and subject to such
protection the order of discharge may be made with which the firm
would have no complaint.
5. Defendant No.1 appeared in person against his own firm of
solicitors. He showed the Court the correspondence between them
and contended that its fees have been settled and paid as settled so
that the refusal to give discharge was unreasonable and hence the
order of the Prothonotary and Senior Master must be upheld. The
firm has sent its bill to Defendant No.1 under its letter dated 11
th
December, 1996. Defendant No.1 claims that he has challenged each
item of the firm's bill dated 11
th
December, 1996 in his letter dated 8
th
July 1997 which has not been replied by the Solicitor. He claims that
if that letter is read the Court would be satisfied that nothing is due
and payable and hence the resistance to allow discharge of the
Advocate by Defendant No.1 is inequitable and unjust.
6. The Solicitor of Defendant No.1 has shown the bill sent to
Defendant No.1 under the firm's letter dated 26
th
December 2011.
There are various heads of charges for various matters for which the
firm represented Defendant No.1. The item No.21 in the statement
annexed to the letter shows the amount payable in the above suit.
The statement is made as of 9
th
December 2011. The amount was
payable under the bill dated 11
th
December 1996. The Solicitor has
also produced the letter dated 11
th
December 1996 itself, which was3 CHOL. No.559_2012
annexed to the bill of costs in the above suit. The total amount
claimed by the Solicitor was Rs.5.95 lakhs which was due and payable
on the date of the letter after giving credit of Rs.2.10 lakhs paid
earlier by the defendant No.1. The statement shows Counsel's fees as
well as Solicitor's charges. It is stated that even after this bill Rs. 2
lakhs has been paid by Defendant No.1 in partpayment of the bill.
There was, therefore, no dispute with regard to the Solicitor's fees
until after December 1996.
7. It is the case of Defendant No.1 that in 1997 he was to
settle the dispute and file consent terms. He requested his Solicitor to
apply for consent terms. The Solicitor failed to apply despite
instructions. He has waited for 15 years. He now desires to settle the
dispute through another Advocate. He, therefore, applied for
discharge of his Solicitor which has been granted.
8. The learned Prothonotary and Senior Master of this Court
granted his application essentially considering the judgment of the
Supreme Court in the case of R.D. Saxena Vs. Balram Prasad
Sharma 2000(7) SCC 264. The judgment relates not only to the
claim of lien, but to the moral obligation of the Solicitor in allowing
his client to change his Advocate. It is observed that the litigant is
free to change his Advocate when he desired and a lien cannot be
exercised by the Advocate.
9. The firm has not exercised lien over any papers. All the
papers are stated to have been taken away by Defendant No.1.
Hence, the question is only of the obligation of the firm not to resist
discharge. A firm who charges an exorbitant fee, which the client
cannot and will not pay, certainly cannot resist its discharge, if the
client desires to change his Solicitor. It is then that the judgment of
the Supreme Court would be applied. However, a Solicitor is entitled to charge his fees. This
would be the fees that he would command and not only demand. This
would, therefore, be all reasonable fees charged from time to time as
per his standing. Those fees would have to be paid. The moral
obligation of the Solicitor does not grant a licence to the client to
discard his Solicitor at will after he has devoted his time, effort and
skill and put in hours of work for which he has charged his client.
Such client would be allowed to obtain discharge only upon payment
of just fees of the Solicitor. It is in that regard that the Solicitor has
drawn my attention to the Gujarat High Court judgment in the case of
Alokik Trading and Investment Pvt. Ltd. & 3 Ors Vs. C.R. Iyyer
2000(1) GLR 495. It shows how the Court has a dual duty – to
protect a litigant who desires to change the Advocate and to protect
the Advocate for payment of his just fees and not relegate him to
filing a separate suit. The right of discharge must, therefore,
complement the right to fees.
11. Defendant No.1 sought the court's permission to be
assisted by an advocate. Though the firm had not been discharged, he
was allowed to be represented in this application by another advocate.
His advocate has been heard. The firm through its counsel showed
the court the law with regard to obtaining discharge. The position of
facts and law between the parties must be first considered.
12.. This Court cannot go in to the arithmetical calculation of
the amount of fees charged by the firm and paid or left unpaid by the
client to determine the amount of fees due and payable. However, a
letter of the firm dated 11
th
December, 1996 sending their Bill of Costs
has been relied upon by both the parties and has been shown to the
Court. This bill is in respect of above suit. It refers to 179.5 hours of
work of the firm from 1988 to 1996 and the corresponding fee
charged for such hours of work. It further shows fees of various
counsel. It is not disputed that those counsel had appeared for
defendant No.1 at various stages in the suit. The bill of 1996 has not
been disputed. The bill is for Rs.8.05 lacs. It gives credit for sum of
Rs.2.10 lacs. The balance due and payable is shown to be Rs.5.95
lacs. After the bill was received admittedly Rs.2 lacs have been paid.
In certain further correspondence relied upon by defendant No.1 he
claims that the Senior partner of the firm agreed to settle the dispute
if he withdrew certain allegations he made in his letter dated 8
th
July,
1998. Defendant No.1 accordingly withdrew the letter written to the
firm. Thereafter he paid the settled amount of Rs.11,000/ to the firm
by cheque. That amount has not been credited.
13. The firm refuted that there was any such settlement. In
fact the affidavit in respect of Chamber Order does not show that that
the settlement was for Rs.11,000/. Paragraph 4 of the affidavit of
defendant No.1 shows that the firm was to settle the dispute provided
he withdrew his letter dated 8
th
July, 1997. He withdrew the said
letter. If that was so no consideration was payable upon such
withdrawal. Yet he paid Rs.11,000/. The cheque of Rs.11,000/ was
given on 11
th
December, 2000 and has been returned on 22
nd
February, 2001, about two months thereafter. The sum of Rs.11,000/
is, therefore, seen to be paid by defendant No.1 of his own volition. It
bears no reference to any amount claimed by the firm as the amount
of outstanding dues being settled. When the bill of 1996 shows
Rs.5.95 lacs out of which admittedly Rs.2 lacs are paid, the settlement
amount cannot be accepted to be of Rs.11,000/. The affidavit of
defendant No.1 itself shows that it is a unilaterally given amount.
14. Counsel on behalf of Defendant No.1 has contended that
thereafter the firm has not made a single demand for the outstanding
amount. Hence he seeks to contend that that would show that the
amount payable as fees is settled.
15. It appears that after many years certain mediation took
place. A “mediation award” came to be passed which was to be
executed as a decree by way of certain consent terms between the
parties. Though this aspect is not fully understood, it appears that the
parties had settled and an order in terms of the settlement had to be
obtained. The firm refused to act upon any such settlement for a
number of years and hence defendant No.1 sought to have the firm
discharged to appoint new advocates to represent him in ultimately
settling the suit. It is then that the firm of solicitors has sent their bill
annexed to their letter dated 26
th
December, 2011 relied upon by
defendant No.1 in the affidavit in support of Chamber Order. The bill
of costs show the outstanding bill of defendant No.1 for various
matters including the above suit. The amount payable in respect of
the suit is, however, the largest amount claimed. This amount bears
reference to the earlier bill sent in December, 1996. From 3.95 lacs
which remained payable after the part payment of Rs.2 lacs was
made, a sum of Rs.58,000/ is stated to have been paid thereafter,
leaving a balance of Rs.3.37 lacs as the fees of the firm in the above
suit. It is this amount that the firm claimed to be paid to give
discharge. It is fairly conceded that the other amounts claimed by firm
in the bill of costs cannot be claimed to obtain discharge.
16. It has to be seen whether discharge be given with or upon
payment of the aforesaid fees or a part thereof as reasonable fee of
the solicitors. Under Order 3 Rule 4(2) of the Civil Procedure Code
the appointment of a pleader for a party in any suit or proceeding
would be in force until it is determined with the leave of the Court as
shown therein. Hence it is contended that the appointment of the7 CHOL. No.559_2012
firm must continue until the Court grants leave. The fact that the
Court has to grant leave would mean and imply that the leave cannot
granted mechanically. It has to be granted upon seeing the facts of
the case and the reasonableness of the application. The application
for discharge may be made either by the pleader himself or by the
client. If it is made by the client, as in this case, leave can be granted
upon reasonable conditions being complied. This would be with
regard to the payment of the fees of the pleader and papers of the
client. If the reasonable fees of the pleader are not paid, leave may be
refused and would have to be refused.
17. Indeed the provision of leave is seen to have been made
with the purpose and object of keeping the superintendence and
supervision of the court over pleaders as well as their clients.
18. Under Section 34 of the Advocates Act 1961 the High
Court may make rules in this regard.
19. The rules of the Original Side of the Bombay High Court
Rules framed under Section 34 of the Act are in Appendix VI. Rule 8
of the Rules to which my attention has been drawn, refers to the
provisions of Order 3 Rule 4 of the CPC also. The Rule 8 (5) of the
rules in Appendix VI provides that when party seeks to discharge his
advocate, he may apply to the Court for the order of discharge
following the procedure prescribed and if the Court is satisfied, it may
pass orders discharging the advocate and while doing so impose such
terms and conditions as it may deem proper. The Court is, therefore,
required to be satisfied that the case for discharge is made out. The
Court would have to consider the aspects of the fees of the
pleader/advocate and the papers of the client. The terms and
conditions that the Court may specify would be with regard to either
or both of these aspects. A reading of the aforesaid rule also shows
that it would be upon the satisfaction of the Court that both the
pleader as well as client have been dealt with reasonably, that an
order of discharge would be made. It is common knowledge that the
pleader cannot, by simplicitor wanting discharge, obtain a discharge.
He would have to inform the client, return the papers and then claim
discharge. Similarly, therefore, a client cannot simplicitor require a
pleader who has worked for him to be discharged to engage another
pleader without paying the fees of the pleader. That would
tantamount to encouragement of abuse. A pleader and advocate or
solicitor is an officer of the Court and must be as much protected as
the litigant himself for whom the Courts are established.
Consequently the satisfaction of the Court with regard to the
protection of both these parties is required.
20. In the case of Naryandas Sundarlal Rathi Vs.
Narayandas Harbhagal AIR 1932 Bombay 363 this court sought to
protect the costs incurred by the Solicitor before he could be
discharged by a lien which could be claimed by the Solicitor upon the
funds, money and property received for his client and a general lien
upon the papers and documents of his client.
21. In the later case of Dharamdas Kachudas Vs. Kachudas
Makanji AIR 1933 182 this Court disagreed with the earlier case in
that it held that the attorney could not insist on being employed by
the client even after the client did not desire to employ him as his
attorney. It held that the attorney has lien upon the papers but could
not insist upon it to retain himself. Hence if the attorney's fees were
not paid, the papers may not be returned and the attorney may claim
for his unpaid costs, but a change of attorney would be allowed.
22. The Division Bench of Calcutta High Court in the case
Pankajkumar Ghose Vs. Sudheerkumar Shikdar AIR 1934 Calcutta
58 considered order 3 Rule 4 of the CPC, 1908. It came to be
observed that there could be no change when the attorney's costs
were not provided for in the order for change unless the attorney
discharged himself by his misconduct. Referring to the earlier case of
Nagendar Chunder Ghose Vs. Greendur Chunder Ghose of the
Supreme Court of Calcutta of 1858 the rule laid down by Supreme
Court of Calcutta came to be cited. It required the payment of costs
as condition precedent to granting of orders of the change of the
attorney. Hence it came to be concluded that no order for change for
attorney may by made unless provision was made for payment to the
attorney.
23. New India Assurance Company Ltd. V/s. A.K. Saxena AIR
2004 SC 311 as also the case of RB Saxena supra relied upon by
defendant No.1 this aspect was considered. It held that the advocate's
fees could not be adjusted against the advocate's own personal
liability to the client. That aspect, dealt with in Paragraph 12 of the
judgment, in the case of R B Saxena supra is wholly different. Both
these judgments only speak about the lien which cannot be claimed by
an advocate under the Advocates Act and the Bar Council Rules. They
do not speak of the professional fees of attorney who has otherwise
not misconducted himself. It is not the case of defendant No.1 that
his solicitor has misconducted himself. The only aspect in this case to
be seen is whether their fees have been fully settled or whether they
remained due and payable for the work done since many years prior
to discharge being claimed.
24. The case of Basudeo Ram Govind V. Vachha & Co. AIR
1955(4) Bom. 126 related to a solicitor seeking to proceed against
the client of the opposite party with whom his client sought to settle
the dispute without the assistance of the solicitor and before payment
of the fees of the solicitor. Though the solicitor was held entitled to
claim the amount deposited in the Court which was to the credit of
the suit, he was held not entitled to proceed against the opposite party
simplicitor upon the settlement of the suit by his client with the other
side in the absence of collusion between the parties. In Paragraph 14
of the Judgment, to which my attention was drawn by counsel on
behalf of the firm, Chief Justice Chagla enumerated the various
facilities which the court granted to a solicitor as its officer; his costs
could be taxed, he could get a pay order from the chamber Judge
which he could be executed as a decree. The Court gave its own
officer who is the solicitor “equitable interference” by the Court. That
would be the equitable jurisdiction exercised by the Court to grant
leave under Order 3 Rule 4(2) of the CPC. In exercise of such
equitable jurisdiction the Court may allow the solicitor to recover the
fees even from opponent but only when collusion between those two
parties to deprive the solicitor of his claim of costs was seen or if the
solicitor had given notice to the other party in that behalf. Upon the
abolition of the dual system (which was then prevalent) the solicitor
would be left with neither of these remedies. He would require to file
a suit against the client to recover his costs. It is in this regard that
the leave to be granted under Order 3 Rule 4(2) of the CPC would
assume importance. The Court would protect its officer against his
client seeking the discharge if his fees are not paid. That would be the
only protection now left to a firm of advocates representing the
litigant in this Court.
25. My attention has been further drawn to paragraph 23 of
the Judgment of Justice J.C. Shah in the case of Basudev supra. The
observation in the paragraph is that the solicitors have always been
regarded an officials entitled to special protection in respect of
recovery of their costs from their clients. This jurisdiction was
inherited from the Supreme Court Judicature at Bombay (which was
well before the Bombay High Court was itself established in 1862) A
solicitor would be entitled to lien as also for recovery of costs payable
to him by his client and that order would be enforceable as a decree
so that he would not be required to file a suit to recover that amount.
26. Though the institution of solicitors has been abolished, the
requirement of leave of the Court under Order 3 Rule 4(2) of CPC
has not been amended. Though the solicitor's costs need not be
taxed, leave of the Court which is required to be granted is upon
similar principles. Hence the reasonable costs of the solicitor would
have to be paid or would have to be shown to have been paid by the
client who seeks to appoint another solicitor or advocate so that the
Court may grant leave to do so and discharge the solicitor or
advocate. Similarly under the rules of the original side of the High
Court the discharge may be granted upon the terms and conditions as
may be deemed to be proper.
27. In this case the bill of costs has been submitted. We are
not concerned with the costs of other matters. This Court would be
concerned only with the costs incurred in this suit. The costs in this
suit remained unpaid. According to the firm it is Rs.3.37 lacs.
According to defendant No.1 it was Rs.11,000/. Rs.11,000/ is
shown to be a unilateral payment. It is made after his letter dated 8
th
July, 1997 was withdrawn by him. He has not shown any writing to
show that his fees were settled. Payments of cheque of Rs.11,000/
against the bill of Rs.3.37 lacs cannot be accepted as payment made in
full and final settlement to settle all the disputes between the solicitor
and the client. This cheque has not even been encashed. It was
returned after about two months. The solicitor did not serve the
client thereafter. When the client insisted upon service, the firm of
solicitors insisted upon payment its fees. There was nothing more
that the firm could do. The matter remained at that.
28. Now that discharge is sought, the Court may grant leave to
Defendant No.1 to determine the appointment of the firm upon
payment of reasonable amount of fees remaining unpaid. As
aforesaid, the Court cannot go in to detailed arithmetics of the claim.
However, the claim shows the payment of counsel fees of Rs.2.85 lacs.
Even if Rs.2 lacs are paid thereafter and have to be adjusted towards
counsel fees, Rs.85,000/ remain admittedly due and payable for the
counsel who appeared for defendant No.1 in the suit. The
correspondence of defendant No.1 shows the dispute with regard to
the number of hours of work put in by firm of solicitors. Whereas the
firm claimed to have put in 179.5 hours, defendant No.1 claims that
the firm put in only 28.5 hours of work including conferences in the
letter dated 8
th
July, 1997 of defendant No.1 addressed to the firm
which later came to be withdrawn by him. Even that amount has not
been paid. The solicitor's bill of costs shows Rs.5.20 lacs for about
180 hours. About 30 hours of work would constitute 1/6
th
of that
amount. Even if that much work was done by solicitor it would
require payment of another 85,000/ on that score. A total sum of
approximately 1.70 lacs would be due and payable since 1996 and left
unpaid. This computation is only upon seeing the admitted amounts
unpaid and not upon what the firm has claimed. The firm would be
entitled to atleast some more amount for the work done prior to
December, 1996 which is not challenged.
29. Hence considering this fact along with aforesaid law leave
may be granted to defendant No.1 for discharge of the firm upon the
condition that defendant No.1 pays a sum of Rs.2 lacs to his firm of
solicitors.
Hence the following order.
1. Upon defendant No.1 paying Rs.2 lacs to his present firm of
solicitors, the firm of solicitors shall stand discharged.
2. Defendant No.1 shall thereafter be entitled to be represented by
any other firm of advocates.
3. The order of the Prothonotary and Senior Master of this Court
dated 25
st
July, 2012 is modified to that extent.
( ROSHAN DALVI, J.)
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