Tejinder Singh Gujral, Advocate vs State of Punjab and Others

V.K. Bali, J.—Petitioner who is a practising Advocate of this Court, it appears under great strain and yet compelled by circumstances has approached this Court by way of Civil Writ Petition with a view to obtain a direction against the respondents to pay the balance fee in a bunch of cases in which he was engaged by them. Before contentions raised by the counsel on which claim of petitioner is based are noticed, it shall be useful to give brief facts of the case.

Petitioner who is a practising Advocate of this Court for the last about 36 years was approached by Executive Officer of Municipal Committee Ropar who was acting on behalf of improvement Trust Ropar on telephone with a request to engage him for conducting a bunch of 16 Letters Patent Appeals alongwith other Advocate of this Court namely Sri S.C. Khunger. The fee per case, as per telephonic talk aforesaid, was settled at Rs. 4,400/ - per case. On January 4, 1989 i.e. only two days after the petitioner was engaged in 16 Letters Patent Appeals, a letter was issued by the Executive Officer, Improvement Trust Ropar whereby petitioner was informed in writing that he was to conduct 16 Letters Patent Appeals details of which were given in writing aforesaid and that he was to conduct the said cases alongwith one Mr. S.C. Khunger, Advocate. In fact the petitioner was attached in the cases with Mr. S.C. Khunger, Advocate. The positive case of the petitioner is that on January 3, 1989 respondent No. 3 i.e. Executive Officer of the Municipal Committee came to him and handed over a cheque of Rs. 10,000/ - as part payment of the fee alongwith 16 Power of Attorneys which Were to be filed in all the 16 cases. Even the record of the case was handed over to the petitioner on the said date. On February 4, 1989 petitioner prepared fee bills in ten cases separately and handed over the same to the Executive Officer whereas the remaining six bills were prepared and handed over to the said respondent on February 7, 1989. Copies of forwarding letters by which the fee bills were handed over as also copies of some fee bills have been made part and parcel of the record of this petition as Annexure P2 to P5. The fact that the petitioner was engaged in aforesaid cases is evidenced from the resolution passed by the Improvement Trust dated March 31, 1989 copy Where of too has been placed on the records and the same is Annexure P6. After the petitioner was engaged in the manner fully indicated above, he duly filed the letters Patent Appeals and appeared in all the matters on all the relevant dates. As per contention of the petitioner, the appeals aforesaid were listed before a Division Bench of this Court and were adjourned for various dates. The petitioner had been regularly appearing on all the dates either before the first Division Bench or before the other Division Bench where the matters were later transferred. The cases, referred to above, were ultimately admitted on September 28, 1989 on which date too the petitioner appeared and it is with the joint efforts of the lawyers engaged in the case that the initial queries with regard to the maintainability of the appeals were successfully answered. The petitioner who had a justifiable claim with regard to fee settled in the matters so particularly when the matters were admitted to regular hearing sent a number of reminders for payment of balance fee inasmuch as it was only a cheque of Rs. 10,000/ - which was paid to the petitioner as part fee. As the facts narrated above would go to show that the petitioner was engaged in January 1989, but he received a letter dated August 18, 1989 which contained a cheque of Rs. 4,600/ - only i.e. Rs. 4,400/ - towards fee and Rs. 200/- towards expenses as his fee with regard to pending Writ Petition No. 1505 of 1989 titled "Balwant Singh v. Improvement Trust Ropar" but in the later part of the letter, it was mentioned for the first time that the petitioner will not be paid any payment in the earlier cases in which he was engaged. In other words although the petitioner was engaged in the Letters Patent Appeals on the fee indicated above and the bills were prepared by him and were duly sent under covering letters immediately after his engagement, it is for the first time in the month of August 1989 he was informed that whatever he has been paid in the pending cases which obviously had a reference to bunch of 16 Letters Patent Appeals was to be enough and he was to be paid nothing more. Copy of letter aforesaid has been placed on the record of this case as Annexure P8. A perusal of letter aforesaid would, however, make it clear that even though the petitioner was informed that he shall not be paid anything with regard to pending cases, not a word has been mentioned with regard to terminating the engagement of petitioner in pending cases which, as referred to above, could be no other cases but for the bunch of 16 Letters Patent Appeals filed by the petitioner alongwith another lawyer. However, it may be mentioned that in the written statement filed by respondent No. 2 i.e. Improvement Trust it has been stated that the petitioner was told vide letter dated July 14, 1989 that he was to appear with Mr. S.C. Khunger Advocate and in the said cases his services were no longer required. Assuming that the said letter was issued, the case of petitioner is that as per provisions contained in Order 3 Rule 4, sub Rule (2), the appointment of a lawyer is deemed to be in force until determined with the leave of the court by a writing signed by the client or the pleader as the case may be and that no such permission was ever obtained from the court. In any case, the petitioner contends that even if the respondents had right to unilaterally withdraw the services of the petitioner, they had no right whatsoever to withhold the fee.

Two written statements have been filed in the present case, one by the Improvement Trust and the other by Mr. R.P. Loomech Executive Officer of respondent No. 3. In so far as the written statement filed by respondent No. 3 is concerned, the factual position narrated above has been admitted although in the prayer portion it is mentioned that in view of the position stated in the written statement, appropriate orders be passed and the Writ Petition may be dismissed. It appears that the said respondent was asking for the writ petition in so far as he is concerned as otherwise after complete admission of the fats, the prayer could not be to dismiss the petition against the Improvement Trust as well. However, in so far as respondent Improvement Trust is concerned, the matter has been hotly contested and by way of preliminary objection, it has been pleaded that the matter being such which involves contract and, therefore, petition which necessarily has to determine contractual obligation of the respondents the same deserves to be tried and adjudicated upon by the Civil Court. The petitioner is sought to be shown the door of Civil Court on yet another ground that the matter involves disputed questions of fact and, therefore extra-ordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India cannot be resorted to. On question of fact, it has been mentioned that although petitioner was to appear as junior counsel with Mr. S.C. Khunger, Advocate in a set of 16 Letters ''Patent Appeals no legal fee Whatsoever was settled as has been stated in the petition and the petitioner was to be paid only a consolidated sum of Rs. 10,000/ - as legal fee as full and final settlement for his engagement in the said cases. Payment of Rs. 10,000/ - having been made to the petitioner in lieu of full and final settlement of fee nothing else is due towards him. Further the claim of petitioner is sought to be denied on yet another ground that his engagement was terminated vide letter dated July 14, 1989 before effective Sate of hearing. However, it may be mentioned here that in so far as the details of adjournment given by the Court mentioned in the petition and in so far as admission of the cases and appearance of the petitioner on all the dates is concerned, nothing has been stated in the written statement.

The petitioner with the permission of the Court filed replication with a view to controvert the assertions of respondent-Trust that letter dated July 14, 1989 was written to him. It is further stated in the replication that ten out of 16 appeals were filed on February 27, 1989 whereas the remaining were filed later on. However, the matters were fixed on May 24, 1989 and were adjourned to July 26, 1989 so as to be listed alongwith other appeals before first Division Bench. All the appeals were again adjourned to August 23, 1989, August 31, 1989 and then to September 14, 1989. The appeals once again came up for hearing on September 28, 1989 on which date the same were admitted. The appeals were finally disposed of on October 26, 1990 by the First Division Bench. The assertion of the petitioner in the aforesaid replication is that he appeared on all the dates reference of which has been given above and from this impressive array of facts, the contention of petitioner is that if letter dated July 14, 1989 would have been written and duly received by the petitioner, there was no question for the respondent-Trust to have permitted him to appear in all these cases. He further contends that the results of all the cases were intimated to the Executive Officer Ropar and there was no question for him to have continued writing to the Improvement Trust in case he had received letter dated July 14, 1989. It is pertinent to mention here that reference with regard to letter dated July 14, 1989 was made by the Improvement Trust in the reply to the notice issued by the petitioner vide which he claimed the balance fee of the cases aforesaid. Reply to the notice Annexure P10 was issued on August 16, 1990.

In as much as the learned Counsel for respondent-Trust Mr. S.P. Jain has strenuously pressed into service his preliminary objections, it shall be proper to deal with the same before controversy on merits is resolved. The first contention of Mr. Jain that obligation arising out of contractual commitments cannot be enforced by writ of mandamus or general directions to be issued under powers conferred upon the High Court under Articles 226/227 of the Constitution of India would not detain us for a long time as the matter stands clinched against the respondents by a judgment of Hon''ble Supreme court rendered in Govt. of Tamil Nadu and another Vs. R. Thillaivillalan, . The case pre-eminently pertained with regard to fee of a lawyer and on the stand that such a relief was not permissible under Article 226 of the Constitution of India, the Hon''ble Supreme Court observed that the said contention was eminently inargugble. It shall, however, be in all fairness to the learned Counsel to mention that he has relied upon Daulat Ram Trilok Nath and Others Vs. The State of Punjab and Others, . It was a case with regard to claim for refund of excess tax paid and for the reason that the claim was unquantified, writ petition was held not maintainable. In my considered view, the ratio of judgment relied upon by the learned Counsel for the respondent-Trust has no bearing whatsoever on the facts of the present case. In so far as the second contention of learned Counsel for

In this appeal it was contended that the judgment and the award of the learned court below are contrary to law and wrong on facts, The learned court below gravely erred in making the award a rule of the court rejecting the objections filed by the appellant. It ought to have held that the arbitrator had misconducted himself. The award given by the learned arbitrator is vitiated as the same is not in accordance with the reference made by the court. The learned court below has erred in deciding point No. 3 against the appellant. It also wrongly held that the respondent was not required to pay the royalty. The award of lump sum by the arbitrator without adjudication of the specific items is without jurisdiction. On these grounds amongst others, it has been prayed that the award is illegal and the judgment and the award of the learned court below be set aside.

On behalf of the appellants, it has seriously been contended that the order dated 27.5.1983 passed by the learned court below appointing Sri T.D. Ghose, the Ex-Additional Chief Engineer B.C.C.L. Ranchi is without jurisdiction and not in terms of Clause (23) of the agreement. Clause (23) of the agreement has been reproduced in the plaint, according to which in case of any dispute or difference between the parties with respect to his contract, or any condition mentioned therein, either party shall forthwith give the notice of such dispute or difference, and such dispute or difference shall be referred to the Chief/Additional Chief/Deputy Chief Engineer of B.C.C.L. and his decision therein shall be final, conclusive and binding on all the parties. The appellants have contended that in view of this clause in the agreement, the learned court below could not have appointed Sri T.D. Ghose, the Ex-Additional Chief Engineer B.C.C.L. which was clearly in violation of Clause (23) of the agreement. It has further been pointed out that even before the learned Subordinate Judge (before he could pass the order dated 27.5.1983) the appellant had appeared and had filed objection petition praying for the appointment of the arbitrator from amongst the persons named in this agreement. The learned Court below, however appointed Sri Ghose as the sole arbitrator relying on Section 22 of the Arbitration Act. Section 22 of the Arbitration Act runs as follows:

Appointment of an arbitrator - The arbitrator shall be appointed in such a manner as may be agreed upon between the parties.

The learned court below, however, interpreted this section to mean that if the parties can agree with respect to the nomination of the arbitrator and the parties are desirous that the nomination shall be made by the court, the court shall appoint the arbitrator or arbitrators as will become clear from Sub-section (4) of Section 20 runs as follows:

(4) Where no sufficient cause is shown, the court shall order that the agreement be filed, and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or where the parties cannot agree upon the arbitrator, to an arbitrator appointed by the court.

After taking aid of these provisions, the learned court below appointed Sri T.D. Ghose as the arbitrator. It is difficult to accept any such interpretation of these provisions of the Arbitration Act specially when from the order dated 27.5.1983 it would appear that this departure was made by the learned court below only on the submissions made on behalf of the plaintiff-respondent that there had been some enquiries by the Vigilance Department against some of the officers/staff of the appellants and so the respondent and received by the petitioner. The matter does not end there. The respondent-Trust was being posted with all developments that were taking place in the case and at no stage it had intimated the petitioner that as he was no longer a counsel, there was no necessity for him to correspond with it with regard to the cases in question. I would, however, not like to go any further in the matter as judicial restrain guides me not to give a finding with regard to concoction and forgery of the letter aforesaid even though the counsel for the petitioner vehemently pleads for returning such a finding.

The only question that survives for determination is as to whether the counsel can be denied his agreed fee when he has neither made a default nor has been guilty of any misconduct. A somewhat similar matter came for adjudication before a full bench of Madhya Pradesh in Rambabu Sharma Vs. State of Madhya Pradesh, . It was held therein that a counsel can be denied the agreed fee only when he makes default or is guilty of any misconduct. Denial of fee on account of withdrawal of cases was held to be hopeless and worthless justification. I am in respectful agreement with the observations made by the Full Bench of Madhya Pradesh High Court. In this case it is proved beyond doubt that the petitioner was engaged by the Improvement Trust in a set of 16 cases, his fee was settled at Rs. 4,400/ - per case has been admitted by the Executive Officer acting on behalf of improvement Trust and that the petitioner had actually appeared in the cases aforesaid on all the relevant dates till such time the cases were finally disposed of by a Division Bench of this Court. The fact that Rs. 4,400/ - as fee per case was settled between the petitioner and the respondent-Trust has been amply proved by the admission of Executive Officer respondent No. 3 in the written statement filed by him.

Before 1 part with this judgment, the last contention raised by Mr. Jain, the learned Counsel for the respondent would also be required to be determined. It is contended that the Executive Officer was not competent either to engage a lawyer or to settle the fee and such power was in exclusive domain of the Trust which could be authenticated by passing a proper resolution on that behalf. He further contends that in any case the fee settled by the Executive Officer at Rs. 4,400/ - per case was highly excessive. There is, however, nothing on the record to suggest that the Executive Officer who Was admittedly acting on behalf of respondent-Trust had no authority to settle the fee nor such a plea has been even raised in the written statement. No rules have been shown to me which might go to show that settlement of fee is the exclusive jurisdiction of the Chairman of the Improvement Trust and that even if such power exclusively vests in him, the same 1 could not fee delegated to the Executive Officer. For all what has been stated above, the plea of nonrcompetence and jurisdiction of the Executive Officer to 1 settle the fee has, thus, to be rejected. In so far as the plea that fee was on the 1 higher side is concerned, the petitioner has filed an additional affidavit through a civil Miscellaneous copy of which was given to the respondent-Trust and of which additional affidavit no reply has been filed, in which it has been stated that the Improvement Trust has been paying even Rs. 5,500- per case to other lawyers even though it was a bunch matter.

For the reasons aforesaid, this writ petition is allowed. The respondent-Trust is directed to make payment of balance fee of the petitioner i.e. at the rate of Rs. 4,400/ - per case after deducting Rs. 10,000/ - which have already been paid to the petitioner within one month from today. The obstinate and wholly unjustified stand taken by the respondent-Trust further impels me to impose costs upon respondent-Trust which are quantified at Rs. 3,000/ - and also direct the said respondent to pay 15% interest on the balance fee of the petitioner from the date the same became due i.e. from the date the petitioner was engaged on the instructions of respondent No. 3 Executive Officer till such time it is paid.