Tuesday 29 March 2022

Whether client can refuse to pay fees to an Advocate if he has filed joint vakalatnama along with his Junior?

 Any senior lawyer having briefs of various clients

cannot effectively prosecute or defend cases without the

assistance of junior or other lawyers. When a client

authorises an Advocate to conduct or prosecute a case, the

authority given is to conduct/prosecute the case effectively

and the Advocate is empowered to file joint Vakalat for and

on behalf of the client. There is no illegality in filing a joint

Vakalat and the petitioner in Ext.R1(b) has agreed that

everything lawfully done or made by the petitioner in the

conduct of the Suit shall be as valid and binding on him as if

done by the respondent. The respondent cannot deny fees if

any due to the petitioner on that ground. {Para 10}

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO. 24362 OF 2021

P.G.MATHEW Vs THE AIRPORT DIRECTOR

PRESENT

 MR.JUSTICE N.NAGARESH

 28TH DAY OF MARCH 2022 


The petitioner, who is an Advocate practising in

Manjeri, seeks to direct the respondent-Airport Director,

Airport Authority of India to pay the petitioner his professional

fees amounting to ₹3,37,514/- as certified by the Sub Court,

Manjeri as per Ext.P1 within a time frame to be fixed by this

Court.

2. The petitioner states that he appeared for the

Airport Authority of India (AAI) in O.S. No.345/2012 of Sub

Court, Manjeri. The Suit was filed by the AAI for realisation of

money. The Suit was decreed by the court on 04.06.2015.

The petitioner sent bill for professional charges on

10.07.2015. The petitioner was informed that Advocate Fee

can be settled after realisation of the money through

Execution Proceedings. The petitioner intimated the

respondent that payment of Advocate Fee cannot be on the

basis of the outcome of the litigation.

3. Thereupon, the respondent informed the petitioner

as per Ext.P5 that an amount of ₹15,000/- has been

transferred to the petitioner’s account as per the then

prevailing panel advocate fee. The petitioner was also

informed that the court determined advocate fee as claimed

by the petitioner will be paid after the recovery/realisation of

the amount from the judgment debtor. The petitioner

thereupon sent Ext.P6 lawyer notice demanding ₹3,37,514/-.

But, the petitioner was not paid the fee.

4. The learned counsel for the petitioner argued that

Advocate Fee cannot be linked to the outcome of the

litigation. The Hon’ble Apex Court has held in B. Sunitha v.

State of Telangana [AIR 2017 SC 5727] that advocate fee

based on percentage of result of litigation is illegal. The

petitioner is entitled to the fee prescribed under Rule 6(4) of

the Rules regarding Fees payable to Advocates framed by

this Court.

5. The respondent opposed the writ petition. The

respondent submitted that there is no violation of any legal or

constitutional right of the petitioner and hence the writ

petition is not maintainable. The respondent had engaged

only the petitioner for prosecuting the Suit. But, the petitioner

filed joint Vakalat along with Advocate Mini Mathew without

the knowledge or consent of the respondent. Hence, the

respondent has no liability to pay. The respondent has paid

the advocate fee as per the approved fee schedule of the

respondent.

6. The Sub Court has decreed the suit only against

the 1st defendant though there were two defendants. The 1st

defendant remained ex-parte. Therefore, the decree is to be

treated as ex-parte. For ex-parte decree, the fee prescribed

under Rule 6(4) of the Rules is different. The statement of

costs was filed by the petitioner in the court without the

consent of or notice to the respondent. In the Statement filed

in the Sub Court, the petitioner has certified that he has

received the senior and junior fee. Hence, the petitioner

cannot file a writ petition for the same. The petitioner was

given a proposal to accept 50% of the claimed fee. The

petitioner was but not inclined to accept the proposal.

7. The learned counsel for the petitioner, in reply,

submitted that a prior consent of the litigant is not necessary

to file Statement of costs in the Court. This is evident from

Rule 196 and Form 35 of the Civil Rules of Practice and from

Rule 3 of the Rules regarding Payment of Fees to

Advocates. As far as engagement of Advocate Mini Mathew,

there is an implied authority conferred on a Senior lawyer to

file joint Vakalat along with junior lawyer, contended the

counsel for the petitioner.

8. I have heard the learned counsel for the petitioner

and the learned Standing Counsel for the respondent.

9. As regards the defence of the respondent that the

petitioner had filed a joint Vakalat along with Advocate Mini

Mathew, on behalf of the respondent, without respondent’s

consent or knowledge, the Vakalat executed by the

respondent authorises the petitioner to conduct and

prosecute the case. The said authorisation would include

authorisation to do all that is necessary to conduct and

prosecute the case, including filing joint Vakalat along with

junior lawyer in the office of the senior lawyer.

10. Any senior lawyer having briefs of various clients

cannot effectively prosecute or defend cases without the

assistance of junior or other lawyers. When a client

authorises an Advocate to conduct or prosecute a case, the

authority given is to conduct/prosecute the case effectively

and the Advocate is empowered to file joint Vakalat for and

on behalf of the client. There is no illegality in filing a joint

Vakalat and the petitioner in Ext.R1(b) has agreed that

everything lawfully done or made by the petitioner in the

conduct of the Suit shall be as valid and binding on him as if

done by the respondent. The respondent cannot deny fees if

any due to the petitioner on that ground.

11. The further defence of the respondent is that the

respondent has paid approved fee as per the fee schedule of

the AAI. The approved fee schedule of the respondent

appears to be in respect of the counsel empanelled by the

respondent. When Standing/Retainer counsel are appointed

by any institution, the engagement ordinarily will be as per

the prescribed fee structure and there will be an agreement

in respect of the fee payable as per the fee structure. In the

case of the petitioner, there is nothing on record to show that

the petitioner is an empanelled lawyer of the respondent and

that the petitioner has agreed to prosecute the OS as per the

fee prescribed for panel counsel.

12. The argument of the respondent that the decree is

an ex-parte decree is unacceptable. The OS was filed

against two defendants and the 1st defendant remained

ex-parte. The 2nd defendant contested the Suit. The decree

was passed against the 1st defendant and no relief was

granted as against the 2nd defendant. That by itself will not

make the decree ex-parte. The argument of the respondent

to that effect is therefore only to be rejected.

13. The respondent would argue that the statement of

costs was filed by the petitioner in the court without the

consent of or notice to the respondent and that the petitioner

has certified in the statement of costs that he has received

the stated fee from the respondent. As stated earlier, when a

Vakalat is executed by a litigant in favour of an Advocate, it is

an authority to do all such things necessary for the

prosecution/defence of the case.

14. If the counsel has indicated in the Statement of

costs the legal fee payable without consulting the client or

without any agreement in that regard, the client may not be

legally bound to pay the said legal fee. But, the certification

as to receipt of fee by the counsel will not disentitle the

counsel to receive due fees. In this case, it is not in dispute

that the respondent has paid only a part payment of

₹15,000/- to the petitioner towards Advocate Fee. The fact

that it is only a part payment of Advocate fee is evident from

Ext.P5 communication of the respondent.

15. As regards the question of maintainability of the

writ petition, it has to be noted that the respondent is Airport

Director of AAI which is an instrumentality of the State and is

expected and bound to act fairly. Though there is difference

of opinion on the amount of legal fee payable, there is no

dispute on factual aspects. The facts are admitted by either

side. In the circumstances, this Court is of the view that

appropriate orders are to be given to the respondent, in the

interest of justice.

16. It is evident from the pleadings and arguments of

the counsel on either side that there was no express

agreement on the fee payable to the petitioner to prosecute

the OS. It is evident from Ext.P5 communication that the

respondent did not transfer ₹15,000/- as full and final

settlement of fee and even the respondent treated the same

only as part payment of Advocate fee. In the absence of any

agreement on payment of Advocate fee, the respondent is

liable to pay Advocate fee as prescribed in the Rules

regarding Fees payable to Advocates framed by this Court.

In the facts and circumstances of the case, the

writ petition is disposed of directing the respondent to

compute the fee payable to the petitioner in terms of the

Rules regarding Fees payable to Advocates framed by this

Court and pay the balance fee admissible to the petitioner

within a period of one month.

Sd/-

N. NAGARESH, JUDGE

23.03.2022



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