Legal Provisions for the Recovery of Legal Professional Fee against the State by an Advocate

Abstract:

Being a legal professional, who is considered as an officer of the court has to face a very challenging situation many times while practicing and also has to fight for his own fundamental right with having possibility of counter trials on the cost of his professional goodwill and license by the defendant who is the state authority itself. 

The aim of this study is focusing on the available provisions of a legal professional who is, as of now, not having any separate law for the recovery of legal professional fee especially recovery suits against the States. Any form of State authority who could be privileged in terms of power, position, authority etc. leaves an advocate in a very challenging situation to represent his case.

Keywords:

Writ of Mandamus, Enforceability, Maintainability, Cheque Bouncing, Professional Misconduct etc.

Introduction:

Legal professional fee of an advocate against State can also be maintainable as per Rule II of Chapter II of Part VI of the Bar Council of India Rules, he has a right for a fee consistent with his standing at the bar.

An Advocate: Under Advocate act,1961 section 2{1}{a}an advocate means advocate entered in any roll under The Advocate Act 1961. In simple term, a person who is professionally qualified to plead the cause of another in the court of law.

What is the State: Article 12 defines the “State” which includes Government and Parliament of India. Government and the legislatures of each of the States. All local or authorities within the territory of India or under the control of Government of India.

Professional Legal Fees: A pre-decided reasonable amount between the signed parties for the services being rendered to defendant adhering to time limit and interest up to 6% on pending dues.[1]

Perspective Under Indian or International scenario:

Under India Legal Perspective: -Our Indian legal History has always been proving itself for its existence as an upmost constitutionally justified system not less than a supreme enforceable power. While serving for this whole judiciary system, an advocate is considered as an officer of the court and to prevent his/ her professional rights, many provisions are made for safeguarding their rights like: 

A] The Advocate Act,1961

B] Bar Council of India

C]Order XXXVII Rule 5 of Civil Procedure Code,1908.

In India, legal profession does count itself as one of the prestigious, highly educated and society-oriented profession which proves itself by its various significances and ultimately required to be safeguarded from being exploited against unfair deeds.

In Global perspective, we can never ignore the prominent existence of advocates around the world irrespective of any country, any culture. Justice cannot be restricted to any geographical demarcations. A strong judicial system is now becoming the need of the global world not being restricted to any country. Being an officer of Law, the dignity of court is very much identified by them.

Study over Pandemic Scenario-The first ever unexpected situation and required collaboration over the various international norms-

International Law Association-Due to Covid-19 pandemic, the international law association and the Japan Branch, organizing the conference, have decided 79th Biennial International Law Conference with the object of “Bridging for the Future” fighting together against the global war of Pandemic.

Summary of leading cases with important issues:

1]Writ of Mandamus:

By passing writ petition of Mandamus under Article 226 to High Court which is of remedial approach in the form of an order from a court to any government, subordinate court, corporation or public authority, to do some specific act which the body is obliged under law to do, and which is in the nature of public duty or statutory duty in certain cases.

In the reference of the said problem this specific writ clearly protects the fundamental right of a professional from getting its remuneration in a very genuine way adhering to concerned limits as per law.

1]Gurbachan Singh v. State of Punjab and ORS 31Jan, 2017[2] in the said matter, the writ petition has got accepted and the petition was disposed of with a direction of Advocate General Punjab, to verify the claim of the petitioner made vide Annexure P3 dated on 20.08.2014 and take a final decision on same.

*Determining factors[3] –

1}Whether the petitioner has got the enforceable legal right to claim the relief sought for by him in the present writ petition;

2}Whether the writ petition for recovery of professional fee by an Advocate from his client, which is a state in the present case, is maintainable;

3}Whether the petitioner was authorized by the state in the mentioned case;

4}Whether the petitioner does not have any alternative efficacious remedy;

5}Whether the claim of the petitioner, at this stage, is maintainable and still pending to be decided;

6}Whether there is any contractual or statutory obligation on the part of the respondents to satisfy the claim of petitioners.                 

2]Writ Petition. No.9747of 1988, Judges Sardar Ali Khan, J P. Ram Reddy V. State of Andhra Pradesh And Another[4].

The question arising is whether the petitioner is entitled to payment of interest or compensation @12% per annum on the amounts paid to him as legal remuneration without inordinate delays.

Under provision s.4{2}{b} of the Interest Act of 1978, difficult to say how petitioner is entitled to get interest @12% as claimed by him. Depending on equitable jurisdiction, similarly, in Gulab Shanker v. Mul Chand, AIR 1927 ALL 444 states that when there is no stipulation in the document as to the date on which the principal is to be repaid, interest cannot be claimed by virtue of SECTION 1 of the Interest Act of 1839.

The writ petition is dismissed.

3]Pandurang Dattatray V. Bar Council of Maharashtra, Bombay and Others, Supreme Court of India, Civil Appeal no-720{NCM}1976 declared on October 20, 1983[5]

Initially the matter was escalated in regards of Professional misconduct and giving improper advice to clients by Advocates which in second charge had got called off on less convincing proofs.

2}Suit for Recovery under Civil Procedure Code,1908.

Order III, Rule 4 Notwithstanding contained in Order III, Rule 4 {3} of the First Schedule of the Code of Civil Procedure, 1908, no advocate shall be entitled to make or do any appearances, applications or act for any person unless he presents an appointment in writing, duly signed by parties or his recognized agent.

Food Corporation of India v Usha Bharadwaj[6].

Delhi High Court {9 Apr,1986}

Order XXXVII RULE 5 is also called as “Summary procedure” – Basically depending on documented evidence like promissory note, hundi etc. and liquidated amount with the written consent as well which leaves the defendant having no defense at once and ultimately leads to faster trials.

As per Bare act, in any proceedings under this order, the Court may order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the court, may further order that all proceedings shall be stayed until the plaintiff gives security for the cost thereof.

Case Law: -1] Bar Council of Maharashtra v. M. V Dabholkar and others[7],

Civil Appeals Nos. 1461-68 of 1974, decided on August 13,1975.

2] Kota Co-Operative Agriculture Bank Ltd. V. State of Karnataka and others[8],

Court: – Karnataka High Court, Date: -25-July-2000

case no -order no Memo in W. P No 5522-23/1999 c/w series of the other similar W. Ps

3] Under section 138 of Criminal Procedure Code, 1973 cheque bouncing is a criminal offence and available to an Advocate to prosecute against the state authority in case of pending professional legal fee with having deliberate dishonor cheques. The process is as same as like in an individual case, following with the complaint, legal notice to drawer within 30 day from the date of receiving “Cheque Return Memo” from the bank.

Case Law: G. Sagar Suri and another vs State of U.P. and others[9], dated on 28 January, 2000,

Bench: – S. Saghir Ahmad, D. P. Wadhwa Case no- Appeal 91 of 2000, 

The Supreme Court says “It is the duty of the criminal court to exercise a great deal of caution in issuing the process particularly when matters are essentially of Civil nature.”

Conclusion: 

Here, the above-mentioned deep study concludes that the professional fee irrespective of job status, job profile, organization etc. is the fundamental right of every professional whether the person is Doctor, advocate even entry level position holder like clerk has his/her enforceable right to get remuneration for the services rendered as per the pre-determined agreement. It is always enforceable by law irrespective of the privileged entity of defendant like State authority as well.

“Law is same for everyone which enhances the purity of Justice here”.

Suggestions: –

1]Safeguards against misuse of Section 35 of Advocate Act,1961 which says Punishment of advocates for misconduct.

2]Separate Law for recovery of professional legal fee -should be made to have summary trials in said issue and to safe the dignity of the officer of court.


[1] https://indiankanoon.org/doc/45892873/

[2] https://www.casemine.com/judgement/in/56b49485607dba348f00cb87

[3]  https://www.youtube.com/watch?v=k8pN-ONzxVU

[4] https://www.casemine.com/judgement/in/56b48cea607dba348ffef8ed

[5] https://indiankanoon.org/doc/752761/

[6] https://www.casemine.com/judgement/in/560909c2e4b0149711170913

[7] https://indiankanoon.org/doc/276363/

[8] https://indiankanoon.org/doc/281628/

[9] https://indiankanoon.org/doc/1699144/

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