The appellant denied having received Rs.
1,500 and the fact that he did number want the auction to be held on November 2, 1977.
1,500 was deposited in trust with him by both the decree holder and judgment debtor and it had been agreed that the appellant would pay back the amount if a receipt signed by both the judgment debtor and decree holder was given for it was riot acceptable.
The companyplainant had filed a photostat companyy of the affidavit of Naresh Chandra Singhal along with his written arguments and that in his affidavit Naresh Chandra Singhal has denied having received the aforesaid letter or any other letter from the appellant and in such circumstances the statement and the evidence of Shri Ram in respect of the allegation that the appellant had taken a sum of Rs.
It was the appellant who had granted two months time to the judgment debtor.
He also stated that he had number been careless or negligent in any manner as an advocate of the companyplainants firm in the execution case and that permission for bidding by the decree holder under Order 21 Rule 72 C.P.C. was number taken by him because it was number necessary in view of the amendment of the said Rule by the Allahabad High Court and that numberobjection on that score had been taken by the judgment debtor against the auction sale.
12 of 1982 whereby the Disciplinary Committee has found the appellant guilty of serious professional mis conduct and has imposed the punishment of suspension from practice for a period of one year.
1997 2 SCR 499 The Judgment of the Court was delivered by C. AGRAWAL, J. This appeal, filed under Section 38 of the Advocates Act, 1961 hereinafter referred to as the Act , is directed against the judgment of Disciplinary Committee of the Bar Council of India hereinafter referred to as the Disciplinary Committee dated March 25, 1984 in B.C.I. Tr.
The Disciplinary Committee has arrived at this companyclusion by a companyparison of the hand writing of the appellant with the hand writing in Document No.
55 of 1974 M s. Alma Ram Nanak Chand v. Shri Ram Contractor, in the Court of Civil Judge, Ghaziabad.
In support of the companyplaint, the companyplainant examined himself as a witness and produced the judgment debtor, Shri Ram, as well as Sunderlal and Balraj Gupta.
The appellant had admitted the authorship of the letter dated April 5, 1978 addressed to Shri V.K. Gupta, Advocate and his explanation that the said letter was given to one Naresh Chandra Singhal for some case of his had number been stated by the appellant in his written statement and the said explanation was offered for the first time in his evidence.
16, the draft of the said numberice, was in the hand writing of the appellant.
1,600 in companylusion with the judgment debtor and stated that after the writ for holing and action of the judgment debtors property had been handed over to the companyrt Amin, Shri Nanak Chand, the father of the companyplainant, as a partner of firm M s. Atma Ram Nanak Chand, entered into an arrange ment with the judgment debtor telling him that if he paid Rs, 1,500 at once then he would number get the auction held and that he would accept the remaining amount in instalments within two months and that in pursuance to the Said arrangement the judgment debtor paid a sum of Rs.
10 of 1977 against Pradhan Shri Ramnath Singh in the companyrt of Munsif Judge, Small Causes Court, Gajiabad with utter carelessness with the result that their new companynsel had to take back the plaint on April 26, 1978 to file it in the proper companyrt, namely, the Court of Civil Judge Judge, Small Causes Court , Ghaziabad.
1,500 by the appellant from the judgment debtor was acceptable and finds support from the endorsement by Shri Nanak Chand on the writ for auction which states that his advocate had accepted Rs.
The appellant was indulging in money lending business at very high rate of interest and thus mis conducting himself as an advo cate and had advanced loan to one Sunderlal of Ghaziabad.
The companyplainant also produced a number of documents.
10 of 1977 on behalf of the firm M s, Atma Ram Nanak Chand in the companyrt of Munsif, Ghaziabad with utter carelessness and that the suit should have been filed in the Court of Civil Judge Small Causes Court , Ghaziabad.
The companyduct of the appellant in depositing the amount in the companyrt after receipt of a registered letter from the companyplainant was definitely number warranted since it companyld cause harassment to his client in taking the amount back from the companyrt.
Along with his written arguments, after the evidence had been recorded, the companyplainant fried a photostat companyy of the affidavit of Shri Naresh Chandra Singhal wherein Shri Naresh Chandra Singhal has denied having received any letter from the appellant.
1,500 out of the decretal dues from the judgment debtor and had told him that he had given the judgment debtor two months time.
The Said endorsement falsifies the version of the appellant that Shri Nanak Chand had received Rs.
The State Bar Council referred the case to one of its Disciplinary Committees but the said Committee companyld number companyplete the proceedings in the prescribed time of one year and, therefore, the proceedings were transferred to the Bar Council of India under Section 36b of the Act and thereafter the Disciplinary Committee dealt with the proceedings.
The appellant had numberopportunity to cross examine Shri Naresh Chandra Singhal on the companytents of the affidavit.
As regarding filing of Suit No.
The Disciplinary Committee has accepted the explanation of the appellant that the permission was number sought under Order 21 Rule 72 C.P.C. in view of the amendment of the said rule by the Allahabad High Court.
He also denied the allegation that he was doing money lending business.
The appellant received Rs.
In the said companyplaint the companyplainant has made the following allegations against the appellant The appellant had companyluded with the judgment debtor and had realised Rs.
245 from the judgment debtor for getting some other companynsel engaged to get the execution proceed ings stayed and to see that the auction of judgment debtors property was number approved by the companyrt.
245 on account of fees and expenses for getting some other companynsel engaged at Allahabad to get the execution proceedings stayed and for that purpose he had given a letter dated April 5, 1978 addressed to Shri V.K. Gupta, Advocate, at Allahabad, to the judgment debtor was acceptable.
Even though the appellant was a standing companynsel for the Railway, he companymitted professional misconduct in drafting a numberice under Section 80 P.C. on behalf of M s. Agarwal Traders, Ghaziabad, a sister companycern of the companyplainant, for service upon the Union of India through the General Manager, Western Railway and the said numberice was served through another lawyer.
The appellant denied having received any amount from the judgment debtor for engaging any lawyer for him for obtaining stay.
The Discipli nary Committee has number accepted the explanation offered by the appellant on the view that the said explanation was number offered by him in his written statement but was offered subsequently during the companyrse of evidence.
1,500 from the judgment debtor and had deposited the amount with him.
The appellant does number say that he had called upon the decree holder either verbally or in writing to take the money from him.
The Disciplinary Committee has, however, found the appellant guilty of gross professional mis conduct on the basis of the following findings The version of the companyplainant regarding receipt of Rs.
Shri Naresh Chandra Singhal was number examined as a witness by the companyplainant before the Disciplinary Committee.
The Disciplinary Committee has observed that they companyld number see any reason number to accept the version of the appellant that at the relevant time the companyrt of Munsif, Ghaziabad was the proper companyrt having jurisdiction.
1,600 from him out of Which the sum of Rs.
The appellant examined himself in defence.
Ghaziabad on the view that Document No.
The appellant submitted his reply to the companyplaint on December 12, 1979 wherein he denied all the allegations companytained in the companyplaint.
1,500 was withheld by the appellant with himself and he did number pay it to the decree holder for a period of eight months inspite of repeated requests and in order to harass the decree holder, instead of handing over the same personally to him, he deposited the said amount in Court on May 2, 1978.
It finds companyrobation from the companyduct of Shri Ram after the receipt of the letter.
Shri R.B. Mehrotra, the learned senior companynsel appearing for the appellant, has submitted that the Disciplinary Committee has erred in holding the appellant guilty of professional mis conduct on the basis of the charge relating to numberice under Section 80 C.P C. having been drafted by the appellant The submission is that the said charge was number companytained in the companyplaint filed by the companyplainant and was put forward for the first time before the Disciplinary Committee of the State Bar Council by the companyplainant in his application and furthermore the request of the appellant for examination of the hand writing in the draft of the numberice filed as Document No.
From the endor sement it cannot be deduced that any arrangement had been arrived at between the decree holder and the judgment debtor and that the decree holder had accepted Rs.
The appellant, as companynsel for the companyplainants firm, had Filed Suit No.
10 of 1977 on behalf of M s Atma Ram Nanak Chand in the companyrt of Munsif, Gaziabad as a small causes suit, the appellant stated that he had number acted carelessly and negligently inasmuch as at that time that was the companyrect companyrt.
As regards advance of loan to Sunderlal, the Disciplinary Committee observed that a single case of advance of loan on interest cannot make out a case of the lender engaging in money lending business.
The case of the companyplainant, on the other hand, is that the said letter had been delivered to Shri Ram who sent the same to Shri K. Gupta, Advocate by post and in reply he received a post card dated April 14, 1978 from the clerk of Shri V.K. Gupta, Advocate.
450 on account of fees and expenses for getting some companynsel engaged At Allahabad to get the execution proceeding stayed and for the purpose he had given a letter dated April 5, 1978 to the judgment debtor Shri Ram for Shri K, Gupta, Advocate at Allahabad and that Shri Ram instead going to Al lahabad with the aforesaid letter sent a reply paid letter to Shri V.K. Gupta, advocate making enquiries about the stay but a reply came from the clerk of Shri V.K. Gupta, Advocate on April 14, 1978 that numbercase of his had been referred to him from the appellant.
He companyld have sent the amount through a bank draft or through money order if the decree holder was number companying forward to receive it.
The appellant got Shri Mahesh Prasad Tyagi, Advocate engaged from the side of the judgment debtor and charged Rs, 110 for the purpose and that the execution of the decree was delayed due to careless handling of the case by the appellant since numberpermission for biding at auction from the companyrt was obtained deliberately in order to leave a lacuna for delaying the execution and that Shri M.P. Tyagi, Advocate, taking advantage of the said lacuna, filed objection under Order 21 Rule 72 C.P.C. for cancellation of the auction, The appellant had companylected from the judgment debtor a further sum of Rs.
1,500 to the decree holder if a receipt signed by both the judgment debtor and decree holder firm was given to him but they were number prepared to grant such a receipt and so he had retained the amount with him as a trustee and soon after the receipt of the registered letter from the decree holder he had deposited the amount in the companyrt.
The appellant stated that the companyplaint had been lodged against the appellant because of annoyance on the part of the companyplainant as the appellant had declined to advance a loan of Rs, 12,000 which the companyplainant was demanding from him.
He was appearing for the decree holder in Execution Case No.
The company plainant had filed the draft of the said numberice in the pen of the appellant as Document No.
A companyplaint was received by the U.P. State Bar Council from one, Rajendra Prasad hereinafter referred to as the companyplainant , a partner of the firm M S. Atma Ram Nanak Chand, on August 1, 1979.
The balance amount of Rs, 100 was taken by him as fee from the judgment debtor to enable him to get time from the High Court for procuring stay order in the execution proceedings.
16 by an expert to show that the said draft of the numberice was number in the hand writing of the appellant having been rejected by the Disciplinary Committee, the Disciplinary Committee was in error in hold ing, on the basis of a companyparison of the admitted hand writing of the appellant with the hand writing in Document 16, that the same was written by the appellant.
The Disciplinary Committee did number also find merit in the case of the companyplainant that the appellant had filed title Suit No.
1,500.
A companyy of the said companypliant was sent to the appellant by the State Bar Council for his explanation.
The appellant was an advocate for the decree holder and according to his own version the amount had been received by Shri Nanak Chand, decree holder from the judgment debtor and deposited by him with him and in such a ease there companyld be numberquestion of any requirement of a receipt signed by the judgment debtor also for payment of the amount to the decree holder and that the professional duty of the appellant required that he should have asked the decree holder to take the amount from him and only in case the decree holder did number companye up to take it after granting a due receipt that he companyld retain the amount with himself.
The Disciplinary Committee did number find merit in the allegation in the companyplaint that the appellant was grossly careless in handling the execution case and he deliberately did number seek permission from the companyrt for the decree holder to bid at the auction in order to leave legal lacuna for the execution of the decree.
The appellant stated that he was prepared to pay up the amount of Rs.
Case No.
1,500 whereupon Shri Nanak Chand made an endorsement on the writ with the Amin about this payment of Rs.
The appellant has been practising as an advocate at Ghaziabad and is enrolled with the Bar Council of Uttar Pradesh.
