R.D.SAXENA versus BALRAM PRASAD SHARMA

Citation: [2000] SUPP. 2 S.C.R. 598 · Decided: 22-08-2000 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Disposed off

Judgment (excerpt)

A 
R.D.SAXENA 
v. 
BALRAM PRASAD SHARMA 
AUGUST 22, 2000 
B 
[K.T. THOMAS AND R.P. SETHI, JJ.] 
Advocates Act, 1961-Section 35-Professional misconduct-Case file 
of client withheld by Advocate for non-payment of fees-Bar Council debarred 
him from practice for 18 months and imposed fine of Rs. 1000-Considering 
C 
it to be a professional misconduct-On appeal-Held, case.files cannot be 
equated with "goods" or "goods bailed" as they have no marketability-
Cause of litigant far more important than right of an Advocate for his 
remuneration-Such a practice can never be permitted-However, an Advo-
cate may adopt alternate legal remedies to recover his fees-It is not only a 
D 
E 
F 
legal duty but it is also morally imperative to return the case file as a litigant 
is free to engage any Advocate-Punishment reduced to a reprimand, not to 
be counted as precedent, as law on this question was unsettled-Indian 
Contract Act, 1872-Sections 148 and 171. 
Constitution of India-Article 22( 1 )-The right of an accused to consult 
and be defended by counsel of his choice-Given status of a fundamental 
right-Code of Civil Procedure-Order 3, Rule 4( I). 
Bar Council of India Rules-Rules 24, 28 and 29-Advocate specifically 
prohibited from adjusting his fees against his own personal liability to the 
client-No lien provided on the litigation files kept with the advocate-Any 
such lien, if permitted, would be susceptible to great abuses and exploitation. 
Words and Phrases-" Misconduct, professional or otherwise"-Mean-
ing of in the context of the Advocates Act, 196I-Section 35. 
Appellant was Legal Advisor of a Bank, which requested him to 
return all the case files after termination of his retainership. He informed 
G 
the Bank that Rs. 91,700 was due towards his fees and that the files would 
be returned only after it was settled. The dispute remained unresolved. So 
a complaint was filed before the State Bar Council. Appellant submitted 
that he had a right to retain the files by exercising his right of lien and 
offered to return the files as soon as payment was made. The proceedings 
H 
were transferred to Bar Council of India whose Disciplinary Committee 
598 
R.D. SAXENA v. B.P. SHARMA 
599 
held the appellant guilty of professional misconduct and debarred him 
A 
from practice for a period of 18 months and imposed a fine of Rs. 1000. 
Hence this appeal. 
Appellant contended that the Bar Council of India did not appreci-
ate that he had a lien over his client's file in lieu of his unpaid fees, and 
that the files could be equated with the "goods" referred to in Section 171 
B 
of the Indian Contract Act. 
Respondent contended that there was no amount payable and an 
inflated amounlhad be shown as fees; that an Advocate cannot retain the 
files after the client terminated his engagement and that there is no lien on 
such files. 
Disposing of the appeal, the Court 
HELD : Per Thomas, J. : 
1. Files containing copies of the records cannot be equated with 
"goods" referred to in section 171 of the Indian Contract Act The advo-
cate keeping the files cannot amount to "goods bailed". In the case of 
litigation papers in the hands of an Advocate there is neither delivery of 
goods nor any contract that they shall be returned or otherwise disposed 
of. The word "goods" mentioned in Section 171 is to be understood in the 
sense in which that word is defined in the Sale of Goods Act. "Goods" to 
fall within the purview of Section 171 of the Contract Act should have 
marketability and the person to whom it is bailed should be in a position to 
dispose it of in consideration of money. There is no scope for converting 
the case files into money, nor can they be sold to any third party.[606-E-H] 
2. Before India attained independence different High Courts in India 
had adopted different views regarding the question whether an Advocate 
has a lien over the litigation files kept with him. After independence, when 
the new Bar Council of India came into existence it framed Rules called the 
Bar Council of India Rules as empowered by the Advocates Act and 
contain provisions specifically prohibiting an Advocate from adjusting the 
fees payable to him by a client against his own personal liability to the 
client. These rules, even after providing a right for an Advocate to deduct 
the fees. out of any money of the client remaining in his hand at the 
termination of the proceeding for which the Advocate was engaged, pro-
vides no lien on the liti

Excerpt shown. Read the full judgment & AI analysis in Lexace.