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
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 :
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.
(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.
(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.