Decided on August 16,1963

Isaac Mathai, Komatath Kizhakkathil Mayetikara Appellant
T.B. Mathew Respondents


MADHAVAN NAIR, J. - (1.)THE complaint against the respondents that as the Pleader of the petitioner he had drawn from Court Rs. 790/ - in O.S. No. 94 of 1104, and Rs. 3.416/ - in O.S. No. 436 of 1109, both on the file of the Munsif, Mavelikara, but paid only Rs. 1,288/ - odd to the petitioner and had not paid the balance in spite of repeated demands. That the respondent had drawn from Court the aforesaid amounts is not disputed. The petitioner made a complaint under the Travancore VakilsAct, 1075 (1900), before the District Judge, Mavelikara, on June 20, 1952, but it came to be thrown out on August 12, 1959, as incompetent; and a revision sought against that order failed in the High Court on June 9, 1961. He has therefore filed this complaint on December 15, 1961, under the Legal PractitionersAct, 1879, which, as per the direction of this Court has been enquired into by the District Judge, Alleppey. In reply to the complaint, the respondent has stated that he had paid to the petitioner and his nominees Rs. 3,435/ - odd before May, 1945, which was above the amount collected in O.S. No. 436 of 1109; and also Rs. 827/ - odd before April 1947, which was also above the decree amount in O.S. No. 94 of 1104; and that in regard to the amounts concerned the relation between him and the petitioner was one of debtor and creditor involving no professional dealing.
(2.)IN the nature of the fiduciary relationship between a client and a legal practitioner a complaint of professional misconduct against ones own Pleader can seldom be expected, except when the client is constrained to turn at bay. The large power of representation in a legal practitioner in respect of his clientscause necessitates a careful scrutiny at the hands of the disciplinary authority whenever a complaint of the aforesaid nature is come. As observed by the Supreme Court in In re "M", an Advocate, (S) AIR 1957 SC 149, 164 the high standards of the profession demand that when moneys of the client come into the possession of a legal practitioner, otherwise than as earmarked fees, he has to treat himself in the position of a trustee for the client in respect of such moneys. Even if he has a lien on such moneys, it would be improper for him to appropriate the same towards his fees without the consent 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". It is pertinent to note here that in Rule 449 of the Civil Courts Guide framed under the Travancore VakilsAct (See Acts and Proclamations of Travancore, Vol. II, page 1136) there is a specific direction : "The Vakils must also distinctly understand that it is their paramount duty to account to their clients for every cash received by them on their clientsbehalf. Any irregularity in these matters will be dealt with as professional misconduct."
Admittedly, the respondent has not taken any receipt for the amounts said to have been paid to the petitioner or on his account, nor any written direction for payments said to have been made to his brother -in -law and others on his behalf. According to respondent he did not take receipts from the petitioner "because of the confidence I had in him and also because of our relationship."In Ext. D -1 letter to the respondent dated 16th April, 1945, the petitioner, while acknowledging receipt of a draft for Rs. 500/ - and accepting "all those payments which you have made as stated in your letter", has intimated "you can send me a copy of any formal receipt in any particular form. I shall sign it and send it back to you."In the light of the above offer there could not have been any delicacy in respondents taking formal receipt from the petitioner for payments made in the professional way.

(3.)EXT . D -2 dated 27th January, 1947, and Ext. D -10 dated 19th July, 1947, are letters by the petitioner addressed to the respondent and produced by the latter in this enquiry. Ext. D -2 reads : "Dear M......... 27th Jan. 47 I had a letter from my brother in connection with the money due to him. I am entirely in the dark as to what is taking place there. He says that a good amount has already been drawn from the Court. Please let me have an up -to -date account of the present position in this matter. His share of the money naturally goes to him; and I have no right to hold it back. Please reply immediately. Thanks. Affly your, (Sd.) Isaac Mathai." Ext. D -10 narrates a sad story that needs no comment. It reads : 19th July, 47. "Dear M......... Re. Accounts of the moneys withdrawn front Court on my behalf. Please refer to my letter of the 27th Jan. 47. I had been waiting for a reply till about the 27th of April, 1947 - About three months - and you thought it fit to remain silent even though courtesy demanded at least a line in reply from you. I reached Mavelikara by about the 10th May, 47, I sent word to you about half a dozen times through one Mr. G. Ayyappan Pillai, to give me the accounts, I saw you personally three or four times and told you so, and I sent word through my brother -in -law another half a dozen times. Some seven weeks passed in that way and I had to come away to Bombay. I am now requesting you again, and for the last time, by letter, to send me the accounts up -to -date. I shall wait for a fortnight from today. Yours affly, (Sd.) Isaac Mathai." In Ext. D -17 dated 7th March, 1949, the petitioner complained : I wrote to you on the 12th January, 49 for details, but you have not replied so far......" and repeated the same in Ext. D -18 dated 27th June, 1949 : "Re : My law -suits under your care. I wrote to you sometime in the month of March for details, but you have not replied so far........." It is admitted that the respondent sent no statement of accounts in response to these letters.

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