http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 17  

PETITIONER: IN RE: SHRI ’M’, AN ADVOCATE OFTHE SUPREME COURT OF INDIA.

       Vs.

RESPONDENT:

DATE OF JUDGMENT: 17/10/1956

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.

CITATION:  1957 AIR  149            1956 SCR  811

ACT: Professional Misconduct-Appropriation by Advocate on  record of Surplus Paper Book Cost towards fees-Legality-Standard of professional  conduct-Trustee-Lien-Procedure-Supreme   Court Rules, 1950, (as amended), O. IV, r. 30.

HEADNOTE: Facts.  Shri ’M’, while an Agent of the Supreme Court, filed a criminal appeal and later on became an Advocate on  record under  the new rules of the Court which came into  force  on January  26,  1954.  He received a sum of Rs. 750  from  his client for costs of printing of the Paper Book and deposited the  same in the Punjab High Court from whose  decision  the appeal arose.  There was a surplus of Rs. 242-1-9 pies.   He withdrew  the amount without informing his client,  made  no demand  of any fees as being due to him, did not  lodge  any bill  for  taxation  and appropriated the  sum  towards  his alleged  fees.   The client came to know of  the  withdrawal from  the Punjab High Court and when he confronted Shri  ’M’ with the letter from that court Shri ’M’, who had denied the receipt  of  the surplus amount, could no longer do  so  and stated that he was entitled to a reasonable fee, had a  lion therefor and had appropriated the amount. Held,  that  on the facts found the Advocate was  guilty  of professional misconduct and must be suspended from practice. The  high standard of professional conduct  contemplated  by rule  30  of Order IV of the Supreme Court  Rules  virtually made an Advocate a trustee for his client in respect of  all his  moneys  which  came  into his  hands  except  what  was specifically  ear-marked for fees.  Any lien which he  might have under the rules would not justify the appropriation  of any  such  money  towards his fees without  the  express  or implied consent of the client or an order of Court. Nor  could an Advocate, in absence of a prior settlement  of fees,  constitute  himself  a judge in  his  own  cause  and determine what 812 would  be reasonable fees payable to him.  It might be  that in certain circumstances he was entitled to exercise a lien, but he had to give reasonable intimation both of the fact of moneys having come into his hands and of the exercise of his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 17  

lien over them until his account was settled. The  principle  of trusteeship applied  with  greater  force where  the surplus money, as in the instant case, was  meant for  a  specific  purpose, it being  well  settled  that  in respect of such a money there could be no lien either  under the common law or the statute. That in a case such as the present, the standard  applicable to an Agent under rules 31 and 32 of the old rules would  be the same. In  the matter of Mr. G., a Senior Advocate of  the  Supreme Court, ([1955] 1 S.C.R. 490), followed. Held  further,  that  as the Supreme  Court  Rules  did  not specifically prescribe any procedure for cases coming  under r.  30  of  0.  IV of the Rules, in  the  instant  case  the procedure substantially as in a warrant case under s.  251-A (as  amended)  of the Code of Criminal Procedure  should  be adopted  as  far  as  possible  subject  to  such  just  and expedient  modifications  as  accorded  with  the  rules  of natural justice.

JUDGMENT: DISCIPLINARY JURISDICTION. In  the  matter  of summons under Order 4, Rule  30  of  the Supreme Court Rules, 1950 (as amended). Purshottam Tricumdas, B. B. Tawakley, G. C. Mathur and K. P. Gupta, for the Advocate. M.   C. Setalvad, Attorney-General for India, and B.   Sen Assisting the Court. 1956.  October 17.  The Judgment of the Court was  delivered by JAGANNADHADAS J.-These proceedings before us arise out of  a summons under Order IV, rule 30 of the Supreme Court  Rules, 1950, (as amended) issued to Shri ’M’, who was originally an Agent of this Court and became an "Advocate on record" under the new rules of this Court which came into force on January 26,  1954.  The summons issued calls upon him to show  cause why disciplinary action should not be taken against him.  It arises  on a complaint against him made to the Registrar  of this  Court  by one Attar Singh on December  5,  1955.   The substance of that 813 complaint is as follows.  The complainant was the  appellant in  Criminal Appeal No. 12 of 1950 in this Court.  Shri  ’M’ acted  for him in connection with the appeal.  A sum of  Rs. 750  was  supplied  to Shri ’M’  for  the  printing  charges therein.  This sum was deposited in due course in the Punjab High  Court  from  whose judgment the  appeal  arose’  There remained an unspent balance of Rs. 242-1-9 out of it.   Shri ’M’  withdrew  that money from the High  Court  without  the authority  and  the knowledge of  the  complainant.   When., later  on, the complainant became aware of it,  he  demanded refund  of the same.  Shri ’M’ first denied receipt  of  the money,  and  thereafter refused to refund it  (claiming,  as appears  later.  in the evidence, to  have  appropriated  it towards  the balance of fees said to be due to  him).   This complaint was in the usual course put up before his Lordship the  Chief  Justice  who  directed  the  Chamber-Judge,  our learned  brother,  Bhagwati,J.,to enquire into  it.  Notices were  issued thereupon both to Shri ’M’ and the  complainant as  well  as  to three other Advocates  of  this  Court  who happened  to  be associated with that appeal.   The  enquiry before  the  learned Judge was fairly  elaborate.   Thereat, certain  conclusions  were  reached on the  basis  of  which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 17  

charges  were framed against Shri ’M’.  The present  summons to  Shri  ’M’ is with reference to those  charges  and  this Bench  has been constituted as a Special Bench  under  Order IV,  rule  30 of the Supreme Court Rules to deal  with  this matter.   The  learned  Attorney-General  has  appeared,  on notice, to assist the Court. The rules of this Court do not provide for the procedure  to be  adopted  in such cases, except to say  that  "the  Court shall  issue,  in the first instance, a  summons  returnable before the Court or before a Special Bench to be constituted by  the  Chief  Justice  to  show  cause  against  specified matters.   There  have been no precedents of this  Court  so far,  to  indicate the exact procedure to be  adopted.   The only  previous case of, professional misconduct  on  summons under  Order  IV, rule 30 of the Supreme Court  Rules  which this Court had occasion to deal with, was that reported 106 814 in  In  the  matter of Mr. ’G’  a  Senior  Advocate  of  the Supreme  Court(1).  But that was a case in which action  had been  duly  taken against the Advocate by  the  Bombay  High Court  in connection with alleged misconduct arising  within its  jurisdiction.   The summons issued to the  Advocate  by this  Court  was with reference to the same  matter  but  as regards  his  position  as a  Supreme  Court  Advocate.  (We understand  that  there  were also two  such  cases  in  the Federal  Court).  In the normal course, and in view  of  the rather  elaborate  enquiry which was held  by  our,  learned brother, Bhagwati J., we should have been content to confine ourselves  to  a mere hearing of arguments on  the  material recorded  in  that enquiry and come to our  own  conclusions with  reference to the charges set out in the summons.   But at  the outset, objection was taken to our adopting  such  a course.  The validity of the summons was questioned.  It was said  that  under  Order IV, rule 30 of  the  Supreme  Court Rules, the enquiry was to follow a summons which is  contem- plated as the first step therein.  It was also said that the enquiry having been in Chambers, the statements of witnesses were  not  on oath.  The learned Attorney-General  was  also inclined  to  think that there was force in  the  objections raised.   After discussion in court with’.the  Advocates  on both sides we felt it desirable to refrain from any decision on   the  preliminary  objection  and  to  give  the   Agent complained  against, the opportunity of a fresh  enquiry  in open  Court on formulated charges.  We accordingly  directed by  our  orders dated May 9, 1956, and September  13,  1956, that  evidence  should be taken afresh before  us  and  that procedure,  substantially  as in a warrant case,  should  be adopted  as far as possible under the amended section  251-A of   the   Criminal   Procedure  Code,   subject   to   such modifications therein as may appear to be just and expedient in the circumstances of this case and without affecting  the rules  of  natural  justice.   We  treated  the  enquiry  in Chambers  as  a preliminary enquiry and heard  arguments  on both sides with reference to the matter of that enquiry.  We (1)  [1955] 1 S.C.R. 490. 815 came  to  the  conclusion  that this  was  not  a  case  for discharge  at  that  stage.   We  accordingly  reframed  the charges  framed  by our learned brother,  Bhagwati  J.,  and added  a fresh charge.  No objection has been taken to  this course.  But it is as well to mention that, in our  opinion, the terms of Order IV, rule 30 of the Supreme Court Rules do not  preclude  us from adopting this course,  including  the reframing  of,  or adding to, the charges specified  in  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 17  

original  summons,  where the material  at  the  preliminary enquiry justifies the same.  The fresh enquiry before us  in Court has proceeded with reference to the. following charges as reframed and added to by us. "You)  CM) ’ once an Agent of this Court and  thereafter  an Advocate on record of this Court, are guilty of professional misconduct in that, Firstly, you having deposited a sum of Rs. 750 in the Punjab High Court towards the printing charges of the appeal  paper book  in  Supreme Court Appeal No. 12 of 1950 on  behalf  of your  client,  Attar Singh, and having the  custody  of  the receipt  issued by the Punjab High Court in respect  of  the same,  applied for. and obtained from the Punjab High  Court without the authority of your client Attar Singh the balance of Rs. 242-1-9 in the month of March 1952. Secondly,  that after obtaining the said sum of Rs.  242-1-9 as  above from the Punjab High Court you retained  that  sum with you and did not return any part thereof to your client, Attar Singh, even though he frequently called upon you to do so  and even though’, you are not entitled to  recover  from him  by way of your professional charges anything  beyond  a sum  of  Rs.  72-15-6 by reason of  your  having  agreed  to receive a sum of only Rs. 100 towards your fee and no more. Thirdly, that you after receiving the sum of Rs. 242-1-9  in March 1952, retained the said sum, without any intimation to your  client Attar Singh and without claiming any amount  as due  from  him by way of fees to you and without  lodging  a bill  for  taxation against him for a period of  over  three years". 816 The undisputed facts are as follows.  The complainant, Attar Singh,  engaged  a  Senior Advocate  of  this  Court  Sardar Raghbir Singh, who associated with himself Shri M. K.  Madan as  the  Junior Advocate and Shri ’M’ as the  Agent  in  the case.  Criminal Appeal No. 12 of 1950 was filed by all these three gentlemen with reference to a Vakalatnama executed  by the  complainant, Attar Singh, in favour of the Agent,  Shri ’M’.  The complainant had to deposit a sum of Rs. 750 in the Punjab High Court for the preparation. of the printed record in the appeal.  Shri ’M’ was entrusted with a bank draft for the said amount.  He deposited it in the Punjab High  Court. A receipt for the amount was issued in Shri ’M’s name.   The printed record in the case was made ready and dispatched  to the   Supreme  Court  about  the  end  of  December,   1951. Thereafter Shri ’M’ applied to the High Court for refund  of the  unspent  balance.  He received from the High  Court  in March, 1952, the sum of Rs. 242-1-9 as the unspent  balance. This amount has not been paid to the complainant by Shri ’M’ who  claims to have appropriated it towards fees said to  be due to him. Now the case of the complainant is this.  When he filed  the appeal  he was impecunious as be bad lost his job by  reason of  his  conviction.  He approached  Sardar  Raghbir  Singh, Senior Advocate, through a relation of his and requested him to  arrange for the conduct of the appeal on his behalf  and to  accept  therefor  a fee of Rs. 600  and  no  -more,  for himself, a ,Junior Advocate to assist him as well as for  an Agent  to  be  in charge, all taken  together.   It  is  the complainant’s  case that Sardar Raghbir Singh agreed to  the same  and  was paid the said amount of Rs. 600 at  the  very outset,  i.e.,  a few days before the actual filing  of  the appeal   memorandum  into  this  Court  and  that  he   (the complainant)  was not directly concerned with the fixing  up of the Junior Advocate and of the Agent or with the internal distribution of the said sum of Rs. 600 as between the three

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 17  

persons.   His  case accordingly is that Shri  ’M’  was  not entitled  to any further amount by way of fees and  that  he unautho-                     817 risedly  withdrew  the amount and  appropriated  it  towards alleged  fees.   Attar  Singh,  the  complainant,  has  been examined  in support of his case.  Sardar Raghbir Singh  and Shri Madan have also been examined to substantiate it.   The evidence of.  Sardar Raghbir Singh is that he was approached by Attar Singh through a common friend, that he was asked to accept a consolidated fee of Rs. 600,, that in  consultation with  a Junior Advocate, Shri Madan, whom he knew  well,  he accepted the engagement, that Shri Madan brought in Shri ’M’ as the Agent and that the amount of Rs. 600 was paid to  him by  Attar Singh and was shared by the three Rs. 300 for  the Senior,  Rs. 200 for the Junior, and Rs. 100 for the  Agent. His  evidence  is  that  Shri  ’M’  was  not  known  to  him previously  but that he was fixed by Shri Madan,  that  Shri Madan  informed him about Shri ’M’ having agreed  to  accept the engagement for a fee of Rs. 100 without more and that in pursuance  of this arrangement the said sum of Rs.  100  was paid over to Shri ’M’ and Rs. 200 to Shri Madan.  The Junior Advocate, Shri Madan, has been examined to substantiate that it  was he who fixed Shri ’M’ as the Agent in the case  with the arrangement that the Agent should charge only Rs. 100 as his fee.  The evidence of these three persons, Attar  Singh, Sardar  Raghbir Singh and Shri Madan, is that all the  above took place a few days prior to the filing of the appeal into Court.   The  appeal was admittedly filed on the  11th  May, 1950.  Shri ’M’ has offered himself as a witness on his  own behalf  He admitted that be was fixed up as an Agent in  the appeal  through Shri Madan at the request of Sardar  Raghbir Singh,  but he says that he is not aware of any  arrangement between  the complainant and Sardar Raghbir Singh  or  about the payment of Rs. 600 by the complainant to Sardar  Raghbir Singh on the alleged arrangement.  He says that, having been taken  as an Agent into the case by Sardar Raghbir Singh  on the recommendation of Shri Madan, he was paid at the time of filing  of  the appeal only a sum of Rs. 50 by  Attar  Singh himself  as part payment of his fees and was  promised  that reasonable fee 818 would  be  paid  later on.  He denies  that  there  was  any understanding or arrangement that only a sum of Rs. 100  Was to  be  paid  to him and also denies that he  was  paid  ’by Sardar  Raghbir Singh the sum of Rs. 100.   To  substantiate that  the alleged arrangement to accept only Rs.  100  could not  be true, he gives evidence that even the  Junior,  Shri Madan, sent to him in August, 1952, a bill for Rs. 320 which he  says  he  passed  on to Attar -Singh  and  of  which  he purports  to produce a copy.  But Shri Madan denies that  he ever  sent  such  a  bill and Attar  Singh  denies  that  he received any such. The  controversy  on  this part of the case  is  covered  by charge number two.  The two material facts which have to  be determined  are (1) whether the Agent, Shri ’M’,  came  into this case on a definite arrangement that his entire fee  for the  case was to be Rs. 100, and (2) whether he was in  fact paid the said sum of Rs. 100 by Sardar Raghbir Singh at  the outset.   The complainant, Attar Singh, is Dot by himself  a direct  witness either to the arrangement or to the fact  of payment  of Rs. 100.  The only material fact which he  spoke to  on this part of the case is as to his  arrangement  with Sardar  Raghbir  Singh.   It was that he should  fix  up,  a Junior Advocate and ail Agent of his own choice, and  accept

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 17  

the  sum  of  Rs.  600 as fees for all  the  three  of  them together  without claiming anything more He says  also  that the.  said sum of Rs. 600 was paid by him to Sardar  Raghbir Singh  at the very outset.  Sardar Raghbir Singh admits  the payment.  There is no reason to doubt that a sum of Rs.  600 was  in fact paid by Attar Singh to Sardar Raghbir  Singh  a few  days  before the actual filing of the  appeal  in  May, 1950,  though  Shri  ’M’ denies knowledge  of  it.   On  the evidence as given before us,, Shri Madan is the only  direct witness  to the arrangement with Shri ’M’ that a sum of  Rs. 100  is to be paid to him and that he should  claim  nothing more  for  the conduct of the entire  case  The  arrangement itself was not made in the presence of Sardar Raghbir  Singh but  it  is  Sardar Raghbir Singh’s  evidence  that  he  was informed about it by Shri Madan. 819 It is also Sardar Raghbir Singh’s evidence that in pursuance thereof  Shri  ’M’  was paid by him Rs. 100.   Thus  on  the evidence, as given, Shri Madan is the direct witness for the arrangement  and Sardar Raghbir Singh is the direct  witness for the payment and each became aware of the other fact from the conversations between them at the time and in the course of  events.  The evidence of both these gentlemen  has  been commented  upon and criticised by the learned  Advocate  for Shri ’M’.  It has been pointed out that these two  gentlemen bad, in these proceedings, occasion to speak to the facts at three stages, first in answer to letters of enquiry  written to  each  of them by the Registrar of this Court  after  the complaint  was filed and Shri ’M’ filed his answer  thereto, next  when  they were examined formally before  the  learned Judge in Chambers, and now when they are examined before  us on  oath.   It  is pointed out that  there  are  substantial variations   and  developments  in  their   versions.    The explanation given by both of them for the variations is that at  the  earlier  stages  they did not  desire  to  be  more specific or categorical since they were given to  understand that the matter would somehow be adjusted, that they did not want to harm Shri ’M’ and that the lines on which they  were to answer the enquiry from the Registrar, were discussed  in a  conference  between  themselves and  Shri  ’M’  with  his Advocates.   Shri  ’M’  also admits that there  was  such  a conference.   It is urged by the learned Advocate  appearing for Shri ’M’ that this very explanation offered by these two gentlemen  shows that their word, even before us, is not  to be  taken  at its face value.  It is also pointed  out  that neither of the Advocates could produce any accounts to  sub- stantiate  the  payments alleged to have been made,  nor  an each record or note as to the amount of fees fixed for and the  arrangement with Shri ’M’ that has been spoken to.,  On the other hand, they admit that they maintain no accounts at all.   It  does  not  also appear  that  they  maintain  any satisfactory  diaries  or  other  record  which  might  have corroborated  their evidence.  The learned  Attorney-General while 820 fairly conceding that there is good deal of room for comment ’about  the evidence of these two gentlemen, urges  that  we should attach greater value to their present evidence  given on  oath particularly in view of the fact that both of  them admit the complainant’s story that Rs. 600 was all that  was intended  to  be paid for all the three  together  and  they categorically  admit  that they have themselves  no  further claim  against the complainant for the work done  by  them., The learned Attorney-General submits that it is unreasonable to  suppose that while both of them  accepted  comparatively

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 17  

small  fees  for the whole case, the Agent,  Shri  ’M’,  was promised ’a reasonable fee" without any fixation.  He  urges further  that  on his own admission, Shri ’M’ can  point  to nothing  in  the  diaries or registers  said  to  have  been maintained by him for his cases, which may substantiate  his version.   He also urges that in view of  the  probabilities and the evidence we should accept not merely that there  was a definite arrangement with Shri ’M’ to accept only Rs.  100 for  the entire case but also that he was in fact  paid  the said sum of Rs. 100 then and there.  After having given  our consideration  to the entire evidence on this part  ’of  the case,  we are of the opinion that we should dispose of  this case  without  coming  to any  definite  conclusion  on  the disputed  facts, material for this issue.  All that we  need say  is  that we are not quite happy about the  evidence  on both  sides  bearing  on this matter.  We  are  inclined  to refrain from recording a categorical finding on this  issue, which  if found against Shri ’M’, may amount virtually to  a finding  of  criminal misappropriation.  We are  willing  to dispose  of this issue in favour of Shri ’M’ by giving  him, so  far as these proceedings are concerned, the  benefit  of doubt  in  respect of the disputed facts  material  to  this issue. The  matter arising under charge No. 1 may also  be  shortly disposed of.  The question under that charge is whether, for withdrawing the unspent balance from the Punjab High  Court, Shri  ’M’  had the requisite authority.  In support  of  the alleged  authority,  be relies both  on  specific  authority given to him orally 821 by or on behalf of the complainant, Attar Singh, and also on the  authority in his favour for the withdrawal  as  implied from  the wording of the Vakalatnama executed in his  favour by  Attar  Singh.  The evidence in support of  the  specific oral authority is his sole statement before us on oath.   He deposes that he was authorised by the relation (or pairokar) of  the complainant, Attar Singh, (who used to go to him  in connection with the appeal) to withdraw the unspent  balance from  the High Court.  He stated that he was unable to  give the  name of the pairokar but that he was sitting in  Court, while  be  was  giving  evidence  before  us.   The  alleged relation  or  pairokar has not been examined  as  a  defence witness.   In  the proceedings before our  learned  brother, Bhagwati  J.,  his  version  on this part  of  the  case  is contained  in  paragraph 8 of his affidavit  dated  the  5th March, 1956, which is as follows: "I  requested  Attar Singh to remit  funds  for  prosecuting appeal  on  21-12-51 and with his permission ,wrote  to  the High  Court on 17-1-52 for refund of the balance out of  Rs. 750.  Thus I received Rs. 242-1-9 from High Court in  March, 1952". This  clearly indicates that his ’Case then was that he  had the permission of Attar Singh himself for withdrawal of  the balance.   But  when examined before  our  learned  brother, Bbagwati J., be said as follows: "Somebody  asked me to get the money from the High Court  to meet the expenses.  Subsequently I wrote to the High Court". in answer to the specific question who that somebody was  he said  "I  do not remember exactly who it was".  He  did  not then say that he was the complainant’s relation or pairokar. In  his  cross-examination  before us he  says  "His  (Attar Singh’s)  relation came to me and told me that I should  get the money from the High Court".  When further cross-examined with reference to his previous statements he said that  when he used the-phrase "with his permission" in his affidavit he

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 17  

meant to indicate the, agent or pairokar of Attar Singh  and when further pressed as to who that relation was and whether he knows his name be was unable 107 822 to give any satisfactory answers.  His evidence on this part of  the  case  is  highly  unsatisfactory  and  can  not  be accepted.    We  have.  no  hesitation  in  coming  to   the conclusion  that  he  has  not  proved  the  specific   oral authority,  which he has pleaded, for the withdrawal of  the balance amount. What is next relied upon in support of the authority is  the Vakalatnama  executed  by Attar Singh in  his  favour.   The vakalatnama  is in form No. 3 of the Fifth Schedule  of  the Supreme  Court Rules, 1950, before their amendment in  1954. What  is relied upon is that this form authorises the  Agent not  only to deposit moneys but also to draw moneys.  It  is also  urged  that an Agent has the power by  virtue  of  the specific  wording  of  the vakalatnama  "to  do  all  things incidental to his acting" for his ’client in connection with the  appeal.   It  is urged that  the  deposit  of  printing charger  and  the withdrawal of the unspent balance  of  the printing  charges  are all acts incidental to acting  for  a client in connection with his appeal.  On the other side  it is  pointed  out that the form itself,  indicates  that  the acting  is to be in connection with the work in the  Supreme Court since it is headed "in the Supreme Court of India" and that  the  authority arising under this  vakalatnama  cannot extend  to acts to be done in the Punjab High Court.  We  do not’  consider it necessary to decide about the exact  scope of   the  power  exercisable  under  the  vakalatnama   with reference to the form that has been employed.  There is  the outstanding  fact in this case that the amount has  been  in fact paid by Shri ’M’ direct into the Punjab High Court on a letter  issued by the High Court to him.  There is also  the fact that the receipt for the said amount has been issued by the High Court to him and in his name.  There is the further fact  that  the unspent balance has been paid  by  the  High Court directly to him without requiring any further  written power or authority, apparently because he was the  depositor and  was  therefore  presumably  entitled  to  withdraw  the unspent  balance.   In view of these facts it  would  appear that the High Court itself was under the impression that the withdrawal was within the 823 scope  of Shri ’M’s authority as an Agent for the appeal  in the Supreme Court.  This impression, if wrong, was one  that may well have been shared by Shri ’M’ equally with the  High Court.   In  these circumstances, while we  definitely  hold that the specific oral authority set up has not been proved, it  appears to us that ’no serious notice need be  taken  of this charge. What remains is charge No. 3 which is as follows: "That  you after receiving the sum of Rs. 242-1-9  in  March 1952, retained the said sum, without any intimation to  your client  Attar Singh and without claiming any amount  as  due from  him by way of fees to you and without lodging  a  bill for taxation against him for a period of over three years". The questions which require consideration under this  charge are  (1)  whether Shri ’M’ intimated Attar Singh  about  the withdrawal  of the unspent balance of printing charges,  (2) whether Shri ’M’ intimated Attar Singh that any fee remained due and made any demand in that behalf, and (3) whether Shri ’M’ was justified in retaining the amount towards fees with- out lodging a bill for taxation against his client.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 17  

It  is  now  necessary  to recall  the  relevant  facts  and enumerate  some  further facts.  Criminal Appeal No.  12  of 1950  was  filed  into this Court on May 11,  1950,  by  the Agent,  Shri  ’M’, on the basis of a vakalatnama  signed  by Attar Singh without date and accepted by Shri ’M’ on May 11, 1950.  Attar Singh says that when he signed the  vakalatnama there  were blanks therein and that after signing,  he  gave the vakalatnama with the blanks to Sardar Raghbir Singh.  It is his evidence that having fixed the engagement with Sardar Raghbir  Singh  and paid the money into his bands,  he  went away  leaving  the actual filing of the appeal, on  a  later date,  to Sardar Raghbir Singh.  Shri ’M’ who  accepted  the vakalatnama on May 11, 1950, and who filed the appeal  memo- randum  into  Court  on the same date  with  the  signatures thereon, also of Sardar Raghbir Singh and Shri Madan, admits that the blanks in the vakalatnama were filled in by him  in his own handwriting.  But he says that Attar Singh was  also present at the time of 824 his  acceptance of vakalatnama and the filing of the  appeal and  that Attar Singh then paid him a sum of Rs. 50  without any  settlement  of  fees.  He says  further  that  when  he accepted the engagement he was given to understand by Sardar Raghbir  Singh that he would be paid reasonable  fee.   This was  at  the  time when the appeal was filed  in  Court  and presumably in the presence of Attar Singh according to  him. Attar  Singh  denies that he was present or paid Rs.  50  to Shri  ’M’  at the time of filing the appeal or that  he  met Shri ’M’ at all at the time.  On his evidence, if  accepted, Shri ’M’ could have no expectation of any further payment of fees.  About an year later there was the payment of Rs. 750, towards the printing charges: It is admitted that the amount was  supplied  by means of a draft in favour of  the  Deputy Registrar  of the High Court given to Sardar Raghbir  Singh, by the brother-in-law of Attar Singh.  This was passed on to Shri ’M’ who sent it on to the High Court.  A receipt  dated July 19, 1951, was issued therefor by the High Court in Shri ’M’s  name., It is in evidence that the printed  record  was received in the Supreme Court in December, 1951.  Intimation of the same was presumably given to the Agents concerned  in due course.  Shri ’M’ applied to the High Court-in  January, 1952,  for  refund of the unspent balance  of  the  printing charges  and  received an amount of Rs.  242-1-9  in  March, 1952.  The appeal was set down for hearing in May, 1952.  It is the evidence of Attar Singh that on receiving  intimation that  the appeal was coming up for hearing he came  down  to Delhi  from Bombay, where he was employed at the  time,  and found  that Sardar Raghbir Singh had left for China and  was not available for arguing the appeal.  His evidence is  that he enquired from the wife of Sardar Raghbir Singh who  told, him  to meet Shri ’M’ which he did.  He says that they  came to  the  conclusion that Shri Umrigar, an Advocate  of  this Court,  was  to be engaged to argue the  appeal.   Thereupon Shri  Umrigar  was fixed up.  The appeal  was  not  actually taken up in May, 1952, as expected.  The engagements of both Sardar Raghbir Singh and Shri Madan were termi- 825 nated   sometime  in  August,  1952,  by  Shri   ’M’   under instructions  of  Attar  Singh.   The  appeal  came  up  for hearing,  later on, in November, 1952.  It was Shri  Umrigar who argued the appeal.  Admittedly Shri ’M’ was also present at the hearing and instructed Shri Umrigar.  The judgment in the appeal was delivered on the 5th December, 1952, allowing the  appeal  and  remanding it for further  hearing  by  the Sessions  Court, as an appellate court, on the  evidence  on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 17  

record.  It would appear that nearly two years later,  i.e., on November 24, 1954, Attar Singh applied to the Punjab High Court  stating  that he had paid Rs. 750  for  the  printing charges  of the. record in his appeal and that some  balance was  lying  to  his  credit  out  of  the  said  amount  and requesting  that  the  same  may be  remitted  to  him.   He received  a reply thereto from the Deputy Registrar  of  the Punjab  High Court dated October 17, 1955,  intimating  that the  unspent  balance  of Rs. 242-1-9 was  refunded  to  his counsel, Shri ’M’ of the Supreme Court, and advising him  to contact  him  in  this  behalf.   It  is  in  view  of  this information that Attar Singh ultimately filed on December 5, 1955,  a  complaint on which the  present  proceedings  were initiated. The  evidence  of Attar Singh on this part of  the  case  is quite  simple.  He says that some time after the appeal  was filed i.e., in or about January 1951, he went away to Bombay in connection with private employment which he had  obtained there and that he came to Delhi again only in May, 1952,  on receiving  intimation  that his appeal was  expected  to  be taken  up.  He says further that since the  appeal  was  not taken  up  in May and went beyond the long vacation  he  got himself  transferred to, and remained in, Delhi since  about May,  1952.  He says that he came into direct  contact  with Shri  ’M’ only from May, 1952, and that he had not  met  him till  then.  It is also his evidence that he was never  told by Shri ’M’ about the unspent balance being available or  of his  having withdrawn the same.  He was also not  told  that any  fees had yet to be paid.  He was under  the  impression that no further fee was due to Shri ’M’ and that his 826 fees must have been paid up at the outset by Sardar paid  up at the outset by Raghbir Singh.  There was no demand by Shri ’M’  from him at any time for balance of fees, not  even  at the time when his appeal was heard by this Court for two  or three days.  Towards the end of 1954, he was greatly in need of money on account of the further proceedings in his appeal consequent  on  the  remand.  He then  felt  that  he  might enquire  from the High Court about the availability  of  any unspent  balance out of the printing charges  deposited  and get back the same and meet his needs.  He accordingly  wrote a  letter  to the High Court in November, 1954.  He  bad  to send  a  number of reminders.  He  ultimately  received  the reply dated October 17, 1955, from the High Court nearly  an year  after  his first enquiry.  According to  Attar  Singh, before  he  wrote  to the High  Court  enquiring  about  the unspent  balance, he approached Shri ’M’ and  enquired  from him.  It was on his advice that he wrote to the High  Court. His  evidence further is that when he actually received  the letter  from  the Deputy Registrar of the High  Court  dated October  17, 1955, be again met Shri ’M’ about  the  unspent balance  and  enquired of him whether he  had  received  the amount, but that Shri ’M’ denied having received any  money. He says that thereafter he confronted him with the reply  he had received from the High Court and that on seeing it  Shri ’M’ was astonished and told him to come later on.  He states that  when he went to him again, Shri ’M’ told him  that  he will return the money after two days, but that ultimately he evaded  him.   It was after this that at the  suggestion  of some friends, he lodged the complaint with the Registrar  of this Court. As against this, Shri ’M’s evidence is as follows.  When the printed record wits received from the High Court, and he got intimation of the same, he wrote a letter dated December 21, 1951, to Attar Singh intimating that the printed record  bad

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 17  

been received in the Supreme Court, that further steps  have to  be taken and that he is to supply him with funds  there- for.  He says that thereafter Attar Singh’s relation came to him in January, 1952, and told him to write 827 to the High Court to get a refund of the unspent balance  of the printing charges.  He admits that he received the refund in  March,,  1952, and says that he  appropriated  the  same towards his fee.  He also says that when in May, 1952, Attar Singh  came in connection with the expected hearing  of  the appeal,  he told him about the unspent balance  having  been received by him and that later on, i.e., after the  hearing, of  the appeal was over, he told him that the bill  for  the work,  done  by him in connection with the appeal  would  be about Rs. 500.  He denies the version of Attar Singh that he was  not aware of the unspent balance having been drawn  and that  for the first time he contacted Shri ’M’ in  1954  for the  unspent  balance  and wrote to the High  Court  on  his advice  for  refund  of  the balance,  if  any.   He  denies specifically  that Attar Singh met him in this connection  a number of times and wrote reminders to the High Court at his instance.    He  also  denies  categorically  that  he   was confronted  by Attar Singh with the letter received  by  him from  the High Court and that he then told him all that  had happened.’ The  question before us is which of these versions is to  be accepted.   Was  there any intimation by Shri ’M’  to  Attar Singh that be withdrew the unspent balance and did he demand from him the alleged balance of fees?  Admittedly, there was no  written intimation and no specific written demand.   The only writing from himself to his client that Shri ’M’ relies on,  is  a letter dated December 21, 1951.  He  produces  an alleged copy thereof which is as follows: "S. Attar Singh C/o Gurdwara Sisganj, Delhi. Dear Sir, Your appeal pending in the Supreme Court No. 1.2 of 1950  is ripe  for further steps as the record has been  printed  and dispatched by the High Court, Simla. Now  you have to supply me with funds for drafting  petition of  appeal,  statement  of case, affidavits  of  service  of notices and typing charges. 828 Since  the  record  has reached the Supreme  Court  on  12th December  1951, you are to file petition within 30  days  of receipt of this date.  Please  treat  this as very urgent,  otherwise  the  appeal shall be dismissed for non-prosecution". It  may be noticed that the wording of this letter does  not in terms state that what is being demanded is his own  fees. Paragraph  2 of the letter may well be understood by a  lay- man,  as  asking  for  nothing  more  than  expenses  to  be incurred.   Attar Singh deposes that he never  received  the letter.  It is clear from the evidence that Attar Singh  was not  in Delhi at the time and it is curious that the  letter is addressed to him at Sisganj Gurdwara Delhi.  Shri ’M’ has been  cross-examined on this and in our opinion, he has  not been  able  to give any satisfactory explanation.   He  says that the address was furnished by Sardar Raghbir Singh.  But Sardar  Raghbir Singh was not asked about it.  Assuming  the letter to be true, it is obvious that it would not have been received  by  Attar  Singh.   Clearly  no  money  has   been remitted,   nor  any  written  communication  received,   in response, to this letter.  If the letter is true, one  would

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 17  

have  expected some further letter to have been  written  to him with, the correct’ address on proper enquiry.  It is  to get over this difficulty that the story has been put forward by  Shri ’M’ of a relation of Attar Singh  having  contacted him  in January, 1952, and instructing him to  withdraw  the unspent balance, if any, of the printing charges.  There  is nothing to show that these alleged instructions were by  way of  response  to  the  above letter.  It  is  not  a  little surprising  that the said relation does not appear  to  have cared  to ascertain whether any money was in fact  available or  was received.  But it is unnecessary to dwell  on  ’this any  further  because  we have already  noticed  the  entire evidence  relating  to  these alleged  instructions  of  the relation and seen how unsatisfactory it is.  We are  clearly of  the opinion that the story of instructions by the  rela- tion is wholly unreliable.  In that view, assuming,  without deciding that the letter of December 21, 1951 , is true,  it is all the more significant that there, are no 829 further  reminders  to Attar Singh to  his  correct  address right up to May, 1952, i.e, when the appeal became ready for hearing,  though  in  the interval Attar Singh  was  not  in Delhi.   It is also surprising that even after the  disposal of the appeal and up to the stage of the complaint, Shri ’M’ did  not  make any written demand or send any bill  for  the fees to Attar Singh. It is only in the reply dated  December 16, 1955 to the complaint, filed before our learned brother, Bhagwati, J., by Attar Singh that a reference is made to his bill of about Rs. 550 against Attar Singh for the work  done by  him on his behalf.  The bill was in fact produced  at  a later date on March 5, 1956, along with his affidavit  filed before Bhagwati, J. In paragraph 9 of that affidavit he says "I, as agent, had lien over the sum of Rs. 242-1-9 which was appropriated  towards  my bill for  Rs.  542-15-9  (herewith attached).   Rs. 250 is still ’due to me from Attar  Singh". That  bill has also been marked before us as an  exhibit  on behalf  of  Shri ’M’.  It is the evidence of  Shri  ’M’,  as already stated, that when he accepted the engagement he  was given  to understand that he would be paid a reasonable  fee but  that  there was no settlement at the time.  He  is  not very clear in his evidence what was the aggregate reasonable fee which he was entitled to.  But from the statement in his evidence  that he informed his client after the  appeal  was finished, that his bill would be Rs. 500 it may be  presumed that  his case is that he was entitled to the amount of  his bill  as  exhibited.   If  so, there  should  have  been  no difficulty in his applying to the Court for taxation against his  client.   We have been informed that such a  course  is permissible  under orders of the Court, even in  a  criminal matter.   But Shri ’M’ admits that be took no such  step  in spite  of  the  fact that a large  and  substantial  balance should  have  been due to him according to his  case.   When asked  to  explain why he did not do so, his  answer  is  as follows: "Because  the  appeal  was  remanded and  it  is  a  general practice here that when the case is finished the clients  do pay the balance.  So we do not insist 108 830 further.  Generally when the appeal or a matter is  finished I  do not make complaints or file suits or do  anything  for the  balance  of fees because mostly  these  matters  create fuss.  I did not, in this matter, press for the balance". It  may be noticed  that in the bill the total of the  items of out-of-pocket expenses is Rs. 22-15-6, leaving a  balance

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 17  

of Rs. 27-0-6 out of the amount of Rs. 50, which on his  own showing,  he had received from his client.  All the rest  of the  bill submitted by him is a claim for fees  for  various items of work said to have been done.  If it be true, as  he says,  that  he sent in December, 1951, a  letter  to  Attar Singh demanding fees, it is all the more surprising that  he never  made  any further written demand  either  during  the pendency  of  the appeal or at least sent a bill  after  the disposal  thereof, for the balance of the fees,  whether  or not  he  would have felt it advisable later on to  take  the matter  to  court  ’for taxation.   This  admitted  inaction renders  it probable that, having obtained the refund  of  a substantial  amount  of over Rs. 200 after  December,  1951, without  the specific oral instructions or the knowledge  of his client or his agent as we have already found-he has kept discreetly silent, without intimating to the client the fact of  his  having received the balance and  without  making  a demand  against  him for the fees.  It is only now  that  he claims  a lien on the said amount for a bill which  he  puts forward,  and  pleads justification for  the  retention  and appropriation  of  the  amount on the basis  of  that  bill, Learned  counsel for Shri ’M’ very strongly urges  that  the evidence of Attar Singh that he was not informed by Shri ’M’ about having obtained refund of the unspent balance and that at  no  time was any demand made to his  knowledge  for  the balance  of  fees  should  be  rejected  as  being   utterly improbable.  He urges that the evidence of Shri ’M’ that  he orally intimated to him the fact of his having obtained  re- fund of the unspent balance, and of his making constant oral demands  for  the balance of fees should  be  accepted.   He suggests  that  it  is Attar  Singh  who  discreetly  evaded raising the question about the balance 831 of  fees  due,  with full knowledge  that  some  amount  had already  been  received by Shri ’M’ and that a  much  larger amount would be found due on a regular bill.  He urges  that if there is no reasonable proof of the arrangement that Shri ’M’  was to receive only Rs. 100 and of the fact of  payment thereof,  it is very unlikely that a professional  gentleman like  Shri  ’M’ would go on working in  the  appeal  without making even an oral demand for fees unless he was  permitted by  the client to withdraw and appropriate the  amount.   He strongly  urges that the conduct of Attar Singh  himself  on this part of the case gives room for considerable suspicion. It is pointed out that though the appeal was disposed of  in December, 1952, he makes no enquiry for the unspent  balance until  after nearly two years.  It is urged that he  has  no satisfactory account how he then came to know that there was a balance at all, the payment of which he might obtain  from the High Court.  It is submitted that his story that it  was at  the  instance of Shri ’M’ himself that he wrote  to  the Punjab  High  Court making enquiries about  the  balance  is utterly improbable, We are not, however, impressed with  the soundness  of  these  comments.  We  see  no  difficulty  in accepting  the  explanation of Attar Singh that he  came  to think  of the possibility of obtaining the unspent  balance, if  any,  which may be available to him, only  when  he  was hard-pressed  for  money  for the  further  conduct  of  his criminal  appeal as a result of the remand.  It may  or  may not  be that the letters of Attar Singh to the  Punjab  High Court  enquiring about the unspent balance were  written  on the  advice  of Shri ’M’, but the fact remains that  for  an adequate  reason as given by him he did start  enquiries  in this  behalf so late as two years after the disposal of  the appeal.  On this part of the case what is really significant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 17  

is  that at the earliest opportunity which Shri ’M’ had,  he did not put forward his present specific case, of intimation of  the  refund and of demand of the fees.  Para  5  of  the complaint  of Attar Singh dated December 5, 1955, states  as follows: "I had throughout been making enquiries from 832 Shri ’M’ and he has consistently denied having received  any money from the High Court". In his reply dated December 16, 1955, Shri ’M’ has contented himself with a bare denial as follows: "Para  5 of the application is emphatically denied  and  not admitted". Even  in  his later statement, in the form of  an  affidavit dated  March 5, 1956, filed before Bhagwati, J. all that  he says is that "on December 21, 1951, he requested Attar Singh to remit funds for prosecuting the appeal and that with  his permission wrote to the High Court on January 17, 1952,  for the refund of the balance.  He has attempted to explain that by  "his permission" he meant "his  pairokar’s  permission". We  have found that, on the evidence and probabilities,  the story  of  pairokar’s  permission  cannot  be  accepted   as reliable.   The story of his having directly informed  Attar Singh about his having got the balance occurs for the  first time  in the cross-examination before Bhagwati, J.,  wherein he says that he told him about it at the time of the hearing of  the appeal.  But even there he says that he did  not  at that time ask for anything further.  There he admits that it is only when Attar Singh asked him to refund the money  that he told him that he should pay him the balance due.  Now, it is  in  this Court in the cross-examination of  Attar  Singh that  the story of his having informed Attar Sing about  his obtaining from the High Court refund of the unspent  balance and  of his having demanded the fees due to him, all at  the time  of hearing of the appeal,-has been put forward in  the following questions and answers. "Q. In fact, at the time when your appeal was heard Mr.  ’M’ had told you that Rs. 242, had been recovered from the  High Court? A.   It is far from true. Q.   He also told you that his fees has got to be paid? A. No. Q.   You  said nothing about it because you knew  that  more fees than Rs. 242 would be due to Mr. ’M’? A. The question does not arise". 833 The further cross-examination of Attar Singh is as follows. "Q.  I am putting it to you that your talk that  you  showed the  letter of the 17th October, 1955 to Mr. ’M’ is  a  pure fabrication? A.   No, it is correct. Q.   I  will tell you what had happened. You had asked  ’M’, ’M’ had told you (this is my case) that he had recovered Rs. 242 and when you said ’what about Rs. 242 he said ’you  have got  to  pay my fees’, which would come to  much  more,  and therefore  thereafter there was no further talk between  you both? A.   Nothing  was talked by Mr. ’M’ to me then, nor up  till now". This belated case about intimation of withdrawal of  unspent balance  and about demand for fees having been made  at  the time  of  the bearing of the appeal, cannot be  accepted  as true.   His admission before Bhagwati, J. that even  at  the time of the hearing of the appeal (which admittedly took two

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 17  

or  three days) he did not ask for anything further must  be accepted as correct.  If so that would make it very probable that the first information to Attar Singh about the fact  of Shri  ’M’ having obtained refund of the unspent  balance  of the printing charges was only when the High Court  intimated the same to him.  It follows that the first oral demand  for the  fees by Shri ’M’ to Attar Singh, may have been when  he was  confronted with the letter of the High Court.  This  is what he admitted in the enquiry before Bhagwati, J. It  may  further  be noticed that Shri  ’M’  states  in  his evidence as follows: "After   I   received  this  money   (unspent   balance)   I appropriated it towards my fee.  There was no settlement  of fees between me and my client.  Raghbir Singh never told  me that I should get only Rs. 50 or Rs. 100". He was cross-examined whether the appropriation was with the consent of the client, as appears from the following. "Q.  Coming to May, 1952, when you said you told the  client that you had received money did you 834 tell him that you appropriated the money A. Yes. Q. No question therefore remained of any lien. The money was appropriated towards fees. A.   This   is   all  opinion  whether  it   was   lien   or appropriation.  It was lien.  So I appropriated it. Q.   You had lien. A. Yes. Q.   You appropriated with the client’s consent. A.   The consent was there". How  unsatisfactory  his  answers are  as  to  the  client’s consent  for  appropriation even on his own  case  that  the amount was appropriated is noticeable. We  are, therefore, of the opinion that the following  facts have been proved.  Without the knowledge of or intimation to Attar Singh, Shri ’M’ obtained in March, 1952, from the High Court  the unspent balance of printing charges deposited  by him on behalf of his client Attar Singh amounting to the sum of Rs. 242-1-9.  He retained the same without any intimation to his client and without making a demand or lodging a  bill for any amount as due from-him by way of fees.  The fact  of his  having obtained the refund became known to Attar  Singh for  the  first time only by the letter of the  Punjab  High Court  to him and it was only when Shri ’M’  was  confronted with the same that he raised the question of payment of fees with  Attar Singh.  Prior thereto he denied receipt  of  any such  moneys when asked by his client about it and  did  not make  any  demand  for fees.  In fact  he  appropriated  the amount,  on  receiving it, without any demand  for  fees  or lodging  a bill for taxation and without the  knowledge  and consent of the client. The  question that next arises for consideration is  whether on   these  facts  Shri  ’M’  is  guilty   of   professional misconduct.  It is urged before us that any Agent has a lien on  the moneys of his client coming into his hands  for  the reasonable  fee that may be due to him if as may be  assumed for  the  purposes  of this case the  fee  was  not  settled originally.  It is urged that in this case Shri ’M’ has done nothing more than exercising that lien and appropriating the 835 amount  which legitimately came into his hands towards  what he  considered as reasonable fee due to himself leaving  the settlement of any further fee that may be due to him to  the good  sense  and  the  good  will  of  the  client  on   the termination of the case.  It is urged that on this view  his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 17  

action  is bona fide.  It is pointed out that while, it  may be,  that  such conduct is not consistent with  the  highest professional standards, it cannot be treated as amounting to professional  misconduct.  It is urged that it is not  every conduct  which may be considered unjustifiable  or  improper that amounts to professional misconduct if in fact the agent or  advocate  honestly  believed that he  was  justified  in adopting  the  course he did, so long as ’such a  course  is not,  in terms, prohibited by any positive rules  framed  by competent  authority to regulate the conduct of  agents  and advocates  in  such matters.  We are unable to  accept  this contention.   As  has been laid down by this  Court  In  the matter  of Mr. "G", a Senior Advocate of the  Supreme  Court (supra)  "the Court, in dealing with cases  of  professional misconduct is not concerned with ordinary legal rights,  but with  the  special and rigid rules of  professional  conduct expected  of and applied to a specially privileged class  of persons who, because of their privileged status, are subject to certain disabilities which do not attach to other men and which  do  not  attach even to them  in  a  non-professional character.................... "He (a legal practitioner)  is bound to conduct himself in a manner befitting the high  and honourable  profession  to whose privileges he has  so  long been  admitted;  and if he departs from the  high  standards which that profession has set for itself and demands of  him in  professional  matters,  he  is  liable  to  disciplinary action".   It appears to us that the fact of there being  no specific rules governing the particular situation, which  we are  dealing  with,  on the facts found by us,  is  not  any reason  for  accepting a less rigid standard.  If  any,  the absence of rules increases the responsibility of the members of  the  profession attached to this Court as  to  how  they should conduct themselves in such situations, having  regard to the very high privilege that 836 an Advocate of this Court now enjoys as one entitled,  under the  law,  to practice in all the courts in India.   We  are conscious that at the time when the relevant facts  happened in  this case Shri ’M’ was only an Agent.  But at  the  time when  he was confronted with the letter of the  Punjab  High Court  intimating  receipt of the unspent  balance,  he  had already  become  an Advocate on record and we have  to  deal with this case with reference to rule 30 of Order IV of  the amended Supreme Court Rules.  That rule says "Where....  the Court  is  of opinion that an Advocate has  been  guilty  of misconduct  or  of conduct unbecoming of  an  Advocate,  the Court  may  take disciplinary action as  provided  therein". Even under rules 31 and 32 of Order IV of the Supreme  Court Rules prior to the amendment, the position would be the same in so far as a matter of the kind with which we are  dealing is  concerned.   It is true that under rule 32  of  the  old rules  which refers to disciplinary action  against  agents, the phrase "conduct unbecoming of an Advocate" is not to  be found.  But that is probably only because in certain matters the  Agent’s position in relation to his client  may  differ from  that of an Advocate.  But we have no reason  to  think that in respect of a matter such as the one we are concerned with,  the standard applicable to an Agent or to  a  present "Advocate  on  record" is anything different.   We  have  no doubt in our mind that the high standards of the  profession demand  that  when the moneys of the client  come  into  the possession  of  an Agent or an Advocate, otherwise  than  as earmarked  fees, he has to treat himself as in the  position of  a trustee for the client in respect of the said  moneys. Even  if he has a lien on such moneys, it would be  improper

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 17  

for him to retain, i.e., to appropriate the same towards his fees without the consent, express or implied, of his  client or without an order of the Court.  It may be that in certain circumstances he is entitled to exercise a lien, but he  has to  give  reasonable intimation both of the fact  of  moneys having  come into his hands and of the exercise of his  lien over  them until his account is settled.  If there has  been no prior settlement of fees he. cannot constitute 837 himself  a  judge in his own cause as to what would  be  the reasonable fee payable to him.  This position of trusteeship in  respect of moneys of the client in his hands is all  the greater  where the moneys represent the unspent  balance  of what  was given for a specific purpose, such as for  payment of  printing charges, as in this case.  On any such  unspent balance,  it  is well settled, that he has  no  lien  either under  the common law or by the statute. (See Cordery’s  Law relating to Solicitors, 4th Edition, page 456 and Halsbury’s Laws of England, 2nd Edition, Vol. 31, page 239, para  265). In  this  case  it  appears to us  that  the  retention  and appropriation of the money by Shri ’M’ without intimation to the client and without sending a bill to him for his fees or applying  for  taxation even after disposal  of  the  appeal constitutes professional misconduct.  This is aggravated  by the  facts  emerging from the evidence of Attar  Singh  who, Shri  ’M’ admits, has no animus against him, and whose  evi- dence  on  this part. of the case we see no  reason  not  to accept.   That evidence shows that when in 1954 Attar  Singh enquired  of  Shri ’M’ he denied knowledge  of  the  unspent balance  and that when confronted with the  letter  received from the Punjab High Court he admitted receipt and  demanded fees  but  evaded the situation without fairly  and  frankly facing it. Shri  ’M’ appears to have been enrolled as an Agent in  1949 and  he  says that when, at the instance of Shri  Madan  and Sardar  Raghbir  Singh he accepted the  engagement  in  May, 1950, it was his third or fourth engagement as Agent.  There may,  no  doubt, be cases where an unscrupulous  client  may take  advantage  of  and exploit a  beginner  in  the  legal profession.   But we are satisfied that this is not  such  a case. We  are  clearly of the opinion that Shri ’M’ is  guilty  of professional  misconduct.   We  direct  that  he  should  be suspended from practice for a period of two years. Order accordingly. 109 838