Whether the court can allow the compromise of a suit if Advocates of parties only sign the compromise petition?

We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor integrity is ever doubted.

This essential precaution will safeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession.

47. Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject-matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and enlargement of the scope of compromise.

48. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duly authorised representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client.

Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court.

If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.

49. Accordingly, we are of the view that the words 'in writing and signed by the parties', inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of Order III rule 1 C.P.C.:

any appearance application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf:

Provided that any such appearance shall, if the court so directs, be made by the party in person.

(emphasis supplied)

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3698 of 1991

Decided On: 20.09.1991

Byram Pestonji Gariwala Vs. Union Bank of India 

Hon'ble Judges/Coram:

T.K. Thommen and R.M. Sahai, JJ.

Citation: (1992) 1 SCC 31)

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When a person will be disqualified to act as arbitrator?

Keeping in view the aforesaid parameters, we advert to the facts of this case. Various contingencies mentioned in the Seventh Schedule render a person ineligible to act as an arbitrator. Entry no. 1 is highlighted by the learned counsel for the petitioner which provides that where the arbitrator is an employee, consultant, advisor or has any other past or present business relationship with the party, would not act as an arbitrator. What was argued by the learned senior counsel for the petitioner was that the panel of arbitrators drawn by the respondent consists of those persons who are government employees or ex-government employees. However, that by itself may not make such persons ineligible as the panel indicates that these are the persons who have worked in the railways under the Central Government or Central Public Works Department or public sector undertakings. They cannot be treated as employee or consultant or advisor of the respondent - DMRC. If this contention of the petitioner is accepted, then no person who had earlier worked in any capacity with the Central Government or other autonomous or public sector undertakings, would be eligible to act as an arbitrator even when he is not even remotely connected with the party in question, like DMRC in this case. The amended provision puts an embargo on a person to act as an arbitrator, who is the employee of the party to the dispute. It also deprives a person to act as an arbitrator if he had been the consultant or the advisor or had any past or present business relationship with DMRC. No such case is made out by the petitioner.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

(Before A.K. Sikri and R.K. Agrawal, JJ.)

M/s. Voestalpine Schienen GMBH v. Delhi Metro Rail Corporation Ltd. .

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Whether arbitrator will be disqualified if he was previously briefed as counsel by law firm of claimant?

A law firm's briefing of counsel in other, unrelated matters is on a very different footing. In our profession it very often happens that on a given day a law firm will brief counsel for one client and on the very next day, or perhaps later that very day, will brief another counsel against the first. At no point in their regular practice do counsel appear 'for' the law firm that briefs them, leaving aside cases where the briefing lawyer or law firm is itself the litigant. In-house counsel or counsel who receive a fee-paid general retainer or salary from a law firm stand on a different footing. We are here concerned with independent counsel, those in the profession who in the course of their daily practice receive briefs from many attorneys, law firms or individual practitioners. This is a remnant of the 'dual system', now abolished, and a central feature of that system, one that continues to this day in practice, is the independence of counsel. They accept briefs from multiple attorneys (often on the same day at the same time in different courts). They are not always briefed at every stage of the case, nor is there any rule that they perform the same functions at every stage: a counsel may lead at one stage, and at another may take second chair to a senior. None of this is backed by statute, but hinges on traditions of long standing. This independence manifests itself in different ways. We have seen counsel withdrawing -- sometimes in court itself -- because their clients give them fresh instructions contrary to previous ones conveyed to court. In Mumbai at least, counsel from the same chambers often oppose each other in court and there is never a doubt raised about their professional independence. We have, too, in this city an acceptance of a junior counsel being briefed against the senior whose chamber he or she has joined. No one sees this as anything but the fiercest independence; indeed, seniors consider it a badge of honour to be opposed (the more vigorously the better) by their own juniors, for there is perhaps no better indicator of a briefing attorney's confidence in the capability, integrity and independence of a junior counsel than to field him against his own senior.

27. Independence, therefore, as used in the statute means nothing more than deciding for oneself. Impartiality is lack of bias: the ability to decide without tilting to one side on considerations other than the merits of the case. Arbitral independence and impartiality is precisely this: to decide 'without fear or favour, affection or ill-will', words familiar to us all.

28. Therefore, counsel having accepted a brief from a particular attorney, advocate-on-record or lawyer for some other client is not per se a disqualification or ineligibility. The disqualification connection must be between the arbitrator-counsel and the litigant. That this is of the essence is obvious from Item 3 of the two schedules -- in a given case, where the law firm or lawyer is itself or himself the client, the arbitrator cannot function as such in an arbitration where that very law firm or lawyer is also engaged, though for some other party; for the arbitrator in question would then have before him a party for whom he is engaged.
IN THE HIGH COURT OF BOMBAY

Notice of Motion (L) No. 453 of 2017 and Arbitration Petition (L) No. 150 of 2017

Decided On: 02.03.2017

 Sheetal Maruti Kurundwade Vs. Metal Power Analytical (I) Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:
G.S. Patel, J.
Citation: 2017(6) MHLJ 642

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Whether party is estopped from rebutting uninformed concession made at bar by its counsel?

 At this stage, we must deal with the submission made on
behalf of the appellant that there was a concession by the
respondent before the High Court that AGREEMENT-II is not a
tripartite agreement but a bipartite agreement16
.
What is the number of parties to a document is a
question of fact. When a fact is in issue17, the same is required
to be proved in accordance with the provisions of the Evidence
Act. Disposition of the property whether it be by way of a
contract or grant or any other, if reduced to writing, parties
are prohibited from giving any evidence regarding the terms of
such disposition18 except the document itself or ‘secondary
evidence’19 of that document. Provided that such secondary
16 20.. That apart, Shri A. Krishnan, learned counsel for the respondent, at the very outset had admitted that
the findings recorded by the learned District Judge to say that the Assignment Agreement is a tripartite
agreement is not correct and the objection in this regard raised by Shri V.K. Tankha, learned Senior
Advocate, may be accepted, he agrees that the same is a Bi parte agreement.
17 The Indian Evidence Act, 1872 – Section 3. Facts in issue.– The expression “facts in issue” means and
includes – any fact from which, either by itself or in connection with other facts, the existence,
non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or
proceeding, necessarily follows.
18 Section 91 – Evidence of terms of contracts, grants and other dispositions of property reduced to
form of documents – When the terms of a contract, or of a grant, or of any other disposition of property,
have been reduced to the form of a document, and in all cases in which any matter is required by law to be
reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant
or other disposition of property, or of such matter, except the document itself, or secondary evidence of its
contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
19 Section 63 – Secondary evidence. Secondary evidence means and includes.— (1) certified copies given
under the provisions hereinafter contained;
 (2) Copies made from the original by mechanical processes which in themselves ensure the
accuracy of the copy, and copies compared with such copies;
 (3) Copies made from or compared with the original;
 (4) Counterparts of documents as against the parties who did not execute them;
 (5) Oral accounts of the contents of a documents given by some person who has himself seen
it.

evidence is otherwise admissible under the Evidence Act.
Though oral evidence can be secondary evidence under
Section 63(5), Section 64 mandates that documents must be
proved by primary evidence except in exceptional
circumstances specified under the other provisions of
Evidence Act. Logically, a concession at the bar regarding the
content of a written agreement including the fact as to who are
the parties to the document, in our opinion, does not stand on
any different footing than the oral evidence of the parties. The
concession made by the counsel for the respondent is not
secondary evidence admissible under any of the clauses ofSection 65 of the Evidence Act. Therefore, in our opinion, the
concession made at the bar by the learned counsel (for the
respondent herein) before the High Court does not preclude
the respondent from asserting that AGREEMENT-II is a
tripartite agreement. The tenor and content and the fact that
representatives of the three companies signed the document
cannot be ignored simply on the basis of an uninformedconcession made at the bar.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8299 OF 2016
(Arising out of SLP (C) No.33227 of 2015)
Sasan Power Limited 
V
North American Coal Corporation
India Private Limited 
Citation: (2016) 10 SCC813

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Whether concession by counsel on question of fact is binding on client?

It is also clear that the High Court has recorded in the impugned judgment dated 03.03.2009 that the counsel agreed with instructions from the plaintiff and reiterated this fact in its order dated 28.08.2009 in Misc. Civil No. 13474 of 2009 in the above-mentioned RFA while rejecting the plea of the counsel for the appellant herein that he did not give consent that he had no instructions from his clients A concession made by a counsel on a question of fact is binding on the client, but if it is on a question of law, it is not binding.
Reportable

Supreme Court of India

Vimleshwar Nagappa Shet vs Noor Ahmad Sheriff And Ors on 11 May, 2011

Bench: P. Sathasivam, H.L. Gokhale

Citation: (2011) 12 SCC 658

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Whether court can record finding that counsel appointed by accused was incompetent without hearing said counsel?

No finding could be recorded that the counsel appointed by the accused were incompetent particularly at back of such counsel;
Reportable

Supreme Court of India

Ag vs Shiv Kumar Yadav And Anr on 10 September, 2015

Citation;AIR 2015 SC 3501,2015 CRLJ 4640 SC

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Whether accused can be permitted to recall witness on the ground of change of counsel?

We may now sum up our reasons for disapproving the view of the High Court in the present case:

(i) The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross- examination. They were under no handicap;

(ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at back of such counsel;

(iiii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice;

(iv) The trial Court as well as the High Court rejected the reasons for recall of the witnesses;

(v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed;

(vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial;

(vii) Mere change of counsel cannot be ground to recall the witnesses;

(viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled;

(ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall, i.e., denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings;

(x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted.

Supreme Court of India

Ag vs Shiv Kumar Yadav And Anr on 10 September, 2015

Bench: Jagdish Singh Khehar, Adarsh Kumar Goel

REPORTABLE

Citation; AIR 2015 SC3501,2015CRLJ 4640SC

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Whether concession made by counsel on question of fact is binding on client?

 It is also clear that the High Court has recorded in the impugned judgment dated 03.03.2009 that the counsel agreed with instructions from the plaintiff and reiterated this fact in its order dated 28.08.2009 in Misc. Civil No. 13474 of 2009 in the above-mentioned RFA while rejecting the plea of the counsel for the appellant herein that he did not give consent that he had no instructions from his clients A concession made by a counsel on a question of fact is binding on the client, but if it is on a question of law, it is not binding. [vide:

Nedunuri Kameswaramma vs Sampati Subba Rao & Anr.1

Supreme Court of India

Vimleshwar Nagappa Shet vs Noor Ahmad Sheriff And Ors on 11 May, 2011

Bench: P. Sathasivam, H.L. Gokhale

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Whether court should accept statement of counsel without verification?

 We find it difficult to accept that in a highly contested matter like this the appellant would have instructed her counsel not to press her claim for maintenance. In our view, the High Court ought not to have accepted the statement of the counsel without verification. The impugned order is set aside.

Supreme Court of India

Shalu Ojha vs Prashant Ojha on 18 September, 2014

Bench: J. Chelameswar, A.K. Sikri

Citation;(2015)2 SCC 99

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Duty of court when fair trial to accused is denied due to incompetency of his counsel

During the course of hearing of the appeal, this court was
shocked to note that none of the prosecution witnesses were cross
examined by the learned counsel for the appellant. It will be apt to
reproduce the cross-examination of the victim who was the star
witness. The said cross examination runs as under;
“It is not correct to suggest that, the accused did not
commit sexual intercourse with me. It is not correct to
suggest that, whatever statement, I have given today
is entirely false.
It is noted that almost all witnesses are cross examined in
the similar fashion and there is no cross examination of any witness
on the vital issues of the case. It is thus abundantly clear that the
appellant did not get the fair trial. Though it was the mistake on the
part of the learned counsel for the appellant to cross examine the
witnesses in such a superficial manner, without going into the merits
of the evidence of the witnesses, the learned trial Court was also
under obligation to see that the appellant gets fair trial. In the instant
case, it was necessary for the learned trial Court to intervene and to
find out from the lawyer if he was competent to appear for and on
behalf of the appellant. The learned trial Court was not prevented
from appointing a lawyer from the panel maintained under the Free
Legal Aid. In brief, it can be stated that the appellant is entitled for
fair opportunity to defend himself.
If the appellant did not
understand the carelessness and negligence shown by his counsel,
the learned trial Court should have immediately taken necessary
steps to see that the appellant gets a fair trial.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.398 OF 1998
Anantram @ Moru s/o. Babulal Bawankar,
V
The State of Maharashtra,

CORAM : M.L. TAHALIYANI, J.
DATED : 17th JULY , 2014.
Citation;2015 ALLMR(CRI)975

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Whether counsel can enter into compromise on behalf of party to whom he is representing?

The consent decree as passed by the Court on the basis of settlement endorsed by Government Pleader on behalf of the government was the subject matter of challenge. It was contended that in the absence of any authority by government to the pleader any endorsement given to compromise is not binding. The basic rationale of argument was that a lawyer cannot enter into any settlement when there is no authority to this effect in his favour.

The Court held otherwise. It was observed that the Counsel appearing for a party is fully competent to put his signature to the terms of any compromise upon which a decree can be passed in proper compliance with the provisions of Order XXIII Rule 3 of the Code of Civil Procedure, 1908 (CPC) and such decree is perfectly valid.  The authority of a Counsel to act on behalf of a party is expressly given in Order III Rule 1 of CPC.

In the present matter, arbitral awards were passed and the same were challenged under Section 34 of the Arbitration and Conciliation Act.  When these proceedings were pending, a proposal was floated to negotiate to amicably settle the matters. The government pleader appearing on behalf of the government endorsed the proposal arising from negotiation workable and consented to same. The consent decree as was passed was never challenged before the original court and the said government pleader infact still continued to appear on behalf of government.

The Court accordingly held that the consent decree as passed operated as an estoppel and was binding on the  parties and plea that its lawyer was not authorised to enter into such a settlement was held to be an afterthought.

The Court affirmed the view that the counsel who was duly authorised by a party to appear by executing the vakalatnama and in terms of Order III Rule 4 of CPC, empowers the counsel to continue on record until the proceedings in the suit are duly terminated.  The counsel making a statement on instructions of client is well within his competence and if really the counsel has not acted in the interest of the party or against the instructions of the party, the necessary remedy is elsewhere.

    REPORTABLE

  IN THE SUPREME COURT OF INDIA

      CIVIL APPELLATE JURISDICTION

     CIVIL APPEAL NOS.7164-7166  OF 2014

              (arising out of SLP (C) Nos. 23016-23018 of 2012)

[Y. Sleebachen vs. Supertintending Engineer & Anr.]

(SC, 04.08.2014)

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