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PETITIONER: C.S. VENKATASUBRAMANIAN

       Vs.

RESPONDENT: STATE BANK OF INDIA

DATE OF JUDGMENT:       21/11/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      The appellant  is an  Advocate. Appearing for the State Bank of  India as its counsel, he filed the suit, viz., O.S. No. 8/1985 on the file of Sub-Court, Coimbatore to recover a sum of  Rs. 2.42  crores and  odd against RMT Drill (P) Ltd. and its  partners. It  is not  in dispute that the appellant had issued a Public notice in which he had claimed that C.V. Ramaswami son  of Venkatasubba Naidu and others had lost the title deeds  and that  they intended  to alienate  the  land described in  the original  sale deed No. 669 dated February 21, 1972  and invited  objections. It is not in dispute that the said  persons had hypothecated the properties covered by the sale deed with the respondent-Band and had deposited the title deeds  with the respondents and that the appellant had knowledge of  it as  counsel of the Bank having been engaged in that  title suit  with the  Bank.  Obviously,  therefore, after going  through the  publication, the  respondents lost confidence in  the  appellant  who  had  acted  against  the interest of the Bank. So, the officers had asked him to give "No Objection  Certificate" so  as to  enable them to engage another counsel.  Though they  were right  in saying that he was not  diligently appearing  on behalf  of the Bank in the suit, without imputing motives to the appellant to claim his fees. He  insisted that  until the  fees are  paid he  would decline to  appear and  refuse to give consent necessitating the Bank  to file petition to revoke power and permission to engage another counsel.      It would  appear that  he also insisted upon an apology from the officer by writing the letter. In the circumstances stated above, the officer rightly had not given any apology. The question  is: whether  the Court  should  have  given  a conditional leave  to the counsel to appear on behalf of the respondent-Bank for  conducting the suit. Shri F.S. Nariman, learned senior  counsel for  the  appellant  contended  that under Order  III, Rule  4(2), CPC read with Rule 20-A of the Civil Rules  of Practice it is open to the parties either to change the  counsel or engage a new counsel with the consent or with  the leave of the Court. Until the leave is granted,

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the counsel  who entered appearance on behalf of the parties is entitled  to remain  on record.  As a  condition for  his withdrawal from record and giving consent to another counsel to appear on behalf of the respondent-Bank, the appellant is entitled to  insist upon  payment of  the fees. That was not acceded to  by the  trial Court and in the revision the High Court in  the impugned  order in  CRP No. 711/96 dated March 29, 1996  has confirmed  the order of the Subordinate Judge. Until the  proceedings are  concluded the  appellant has  no right to  collect the fees as a matter of course. We find no force in the contention of Sri Nariman. The appellant cannot insist payment  of fee  as a  condition to give consent. The conduct of  the counsel  led to loss of confidence in him by the respondent,  Therefore, the  respondent-Bank is entitled to change  the  counsel.  But  in  view  of  the  facts  and circumstances  that   the  respondent  had  lost  faith  and confidence in the appellant to the successful conduct of the suit, they  necessarily had  to change  the Advocate and the appellant had wrongly refused to give consent. The Court was right that  he is  not entitled  to payment of the fees as a matter of  right.  The  appellant  cannot  insist  upon  the payment of  the fees until the proceedings are concluded. He may be left free to recover the same from the respondent.      However, we  think  that  in  view  of  the  fact  that admittedly  he   appellant  had   done  the  work  till  the settlement of  the issues  and also  he led  the evidence on behalf of  the Bank partly and that the trial of the suit on behalf of  the Bank  was partly  concluded, on the facts and circumstances, we  think that  one-fourth of  the  scheduled fees under  the Tamil  Nadu Legal Practitioners’ Fees Rules, 1973 may  be just  and proper.  Therefore, the respondent is directed  to   give  unconditional  consent  to  engage  the Advocate. Equally,  the respondent  is directed  to pay over one-fourth of the scheduled fees to the appellant. It is not a pre-condition  to give  his consent.  We have adopted this course to avoid multiplicity of proceedings.      The appeal is accordingly disposed of. No costs.