The Kerala High Court (Ernakulam Bench) has held that the dispute relating to non-payment of fees to an Advocate by a private litigant has to be agitated before a competent civil court in accordance with law and cannot be agitated under Article 226 of the Constitution of India. An Advocate has no right to halt the legal proceedings until his claim for fee is settled, has no lien over the case bundles or the proceedings, and cannot dictate, control or navigate the proceedings in the case after his engagement is terminated. Accordingly, the High Court dismissed the petition with a cost of Rs. 50,000/- payable by the petitioners to the Kerala State Legal Services Authority.
A Single Judge Bench of Justice Bechu Kurian Thomas observed that the dispute relating to non-payment of fees to an Advocate by a private litigant has to be agitated before a competent civil court in accordance with law, and such a claim cannot be agitated under Article 226 of the Constitution of India. It noted that while the legal profession is noble, if members conduct themselves in a manner prejudicial to the interests of their clients, the facade of nobility will be torn.
Relying on the Bar Council of India Rules (Chapter II, Section II, Rules 20, 28, and 29), the Bench observed that an Advocate shall not stipulate for a fee contingent on the results of litigation. The Rules specifically state that an Advocate can only adjust or deduct, after termination of his engagement, the fee from the amount remaining unexpended out of the amount paid towards expenses or remaining in his hands. The Bench observed there cannot be a situation where the litigant is pushed to a corner or blackmailed into paying the fee demanded by the Advocate, and attempting to stall the very proceeding after termination of engagement is an affront to the nobility of the profession.
The Bench clarified that under Rule 15 of Section II, an Advocate has the duty to fearlessly uphold the interests of his client, and cannot be permitted to turn around and act against the interests of an erstwhile client after termination. The Bench observed that even if the petitioners are correct about the unpaid fee, an Advocate has no right to halt the legal proceedings until his claim for fee is settled. An Advocate does not step into the shoes of the client, has no lien over the case bundles or the proceedings, and cannot dictate, control or navigate the proceedings in the case after his engagement is terminated.
The Bench noted that if an Advocate refuses to relinquish his vakalath, the litigant must be given the freedom to engage another Advocate with the permission of the Court, as enabled by Rule 20 of the Rules of the High Court of Kerala, 1971, and Rule 28 of the Civil Rules of Practice in Kerala. It also observed that a litigant must have the freedom to change his advocate, and retention of records for unpaid remuneration would impede the course of justice. Therefore, it is impermissible for the erstwhile counsel to retain the case bundle on the premise that fees were yet to be paid, and the professional concerned can resort to other legal remedies for such unpaid remuneration.
Lastly, the Bench observed that the relationship between an Advocate and a client is a fiduciary relationship with utmost trust and faith, and no Advocate is entitled to exploit the litigant. The Bench found it quite disturbing that two members of the noble profession of law had filed a petition of this nature and successfully stalled the disbursement of the decretal amount to the rightful claimants for almost ten months.
Briefly, the petitioners, who are practicing Advocates, alleged that the first petitioner had been conducting the case of the claimants in the Sub Court, Thiruvananthapuram from the year 2004 onwards, by giving inputs and advice to the counsel appearing for the claimants in the Sub Court. After the award was passed, an execution petition was filed through the petitioner’s colleague, and later a No Objection Certificate was obtained in January 2017, entrusting the case to the first petitioner. After the State Government deposited the first instalment of the award amount due to the fourth and fifth respondents (the claimants), differences of opinion regarding Advocate fees arose between them.
When the fee was demanded, cheque applications prepared by the petitioners were collected by the claimants, who subsequently submitted them to the court through new Advocates (respondents 1 and 2). These new Advocates filed a fresh vakalath before the Executing Court without any No Objection Certificate. The petitioners alleged fraud by the new Advocates and filed complaints before the Chief Justice of Kerala, the Bar Council, and the District Court, Thiruvananthapuram. The petitioners also filed applications seeking to dismiss the cheque application and stay the matter until the complaints were decided. The petitioners approached the High Court under Article 226 to declare the decisions permitting the claimants to appoint another Advocate as invalid, to maintain status quo of the execution proceedings, and to declare their entitlement to get their professional fee adjudicated by the Advocates Grievance Redressal Committee.
The first and second respondents pleaded that they filed the vakalath after the claimants approached them stating they had lost confidence in the petitioners, asserting that claimants have an unfettered right to revoke a vakalath and engage a new counsel. The claimants (fourth and fifth respondents) asserted that they had already paid a sum exceeding Rs. 25 lakhs through bank transactions and in hand, and changed the vakalath only after the first petitioner illegally demanded a further amount of one crore rupees. The claimants alleged the first petitioner continuously harassed them, threatened not to take further steps unless the amount was paid, and refused to relinquish his engagement unless paid a crore of rupees.
Appearances:
Advocates Roy Pallikoodam, R. Prasanth Kumar, R. Kalesh, K.K. Murukesan, P. Jayaprakash (Alappuzha), Jayaprakash Narayanan, Moosakutty V.S., and Rajan K., for the Petitioner
Advocates Shyni Das J.S., M.U. Vijayalakshmi, and Appu Ajith, for the Respondent
