Kaushal Kishore Awasthi vs Balwant Singh Thakur

'REPORTABLE' IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 15540 OF 2017

KAUSHAL KISHORE AWASTHI ... Appellant

VERSUS

BALWANT SINGH THAKUR & ANR. ... Respondents

J U D G M E N T

Respondent No.1 herein (the complainant) had lodged a

complaint with the Bar Council of Chhattisgarh (hereinafter

referred to as the 'State Bar Council') on 19.12.2003 against

the appellant, who is an Advocate by profession, alleging

that the appellant had acted in a manner which amounts to

professional misconduct. On that basis, the complainant

pleaded that disciplinary action be taken against the

appellant. Taking cognizance of the said complaint, a

Disciplinary Committee was constituted as the reply dated

03.02.2006 filed by the appellant was found not to be

satisfactory. After recording the evidence and hearing the

parties, the Disciplinary Committee passed final orders dated

09.12.2006 holding the appellant guilty of professional

misconduct and, on that basis, imposed punishment by

Signature Not Verified suspending his license of practice for a period of two years. Digitally signed by BALA PARVATHI Date: 2017.12.20 16:28:49 IST Reason: The appellant preferred statutory appeal against the said

decision of the State Bar Council before the Bar Council of

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India (BCI). Vide the impugned judgment, the BCI has

affirmed the finding of the State Bar Council as far as

holding the appellant guilty of misconduct is concerned.

However, it has reduced the term of suspension of license

from 2 years to one year along with cost of Rs.25,000/- to be

paid to the complainant. Against this order of the BCI, the

present appeal is preferred by the appellant.

A neat plea which is taken by the learned counsel for

the appellant is that even if the allegations contained in

the complaint are taken to be correct on its face value,

these do not amount to committing any misconduct as per the

provisions of the Advocates Act and Rules framed thereunder.

We are, therefore, confined to this aspect in the present

appeal.

From the complaint which was lodged by the complainant

before the State Bar Counsel it can be discerned that his

allegation was that there was a family dispute, i.e., between

the complainant and his brothers, in respect of a property

which was in the name of their father and was an ancestral

property. It was stated that after the death of their father

on 11.10.1989, the said property was divided by the three

brothers equally. However, it transpired that before his

death, one of the brothers of the complainant influenced his

father and got registered the said property in the name of

the complainant's nephew, i.e., son of that brother, without

the consent of other brothers vide sale deed dated

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25.07.1989. The complainant had approached the appellant,

who is an Advocate, for filing the Suit for declaration to

declare that the sale deed was null and void as it was

prepared fraudulently. The appellant acted as his Advocate

and filed the Suit. In the said Suit, the parties settled

the matter as they agreed for declaring the sale deed as

ineffective and requested the Court for division of the

property. This resulted in passing of decree dated

24.10.1994 by the Court in which the complainant was declared

owner of 0.03 acres along with kutcha house out of the

disputed property. Till this stage, there is no quarrel and

there is no allegation against the appellant as far as his

conducting the said Suit is concerned. However, the

complainant further alleged that owing to family crises, the

complainant suffered some financial crunch in the month of

April, 2003, and he decided to sell his share of land to one

Mr. Narsinghmal, son of Surajmal, for a sum of Rs.30,000/-

and for the purpose of registration of sale deed, he produced

the earlier sale deed before the office of the Deputy

Registrar, Dantewada. At that stage, the appellant produced

objection letter against the proposed sale deed and objected

for registration of the said sale deed on the ground that the

complainant did not have full ownership of the proposed land

and the market value was also shown less in the said sale

deed. It was stated by the complainant that the appellant

was neither an interested party in the said sale deed or in

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the proposed sale of the land nor was he authorised by any

party to raise objections. This act of the appellant in

appearing before the office of the Deputy Registrar and

objecting to the registration of sale deed was labelled as

professional misconduct by alleging that the appellant had

paid a sum of Rs.20,000/- to the complainant in the year 1996

and another sum of Rs.20,000/- to the son of the complainant

in the year 1999 and for repayment of the said amount, the

complainant had offered half share of the subject land as

security. His justification for raising objection,

therefore, was that since the land was being sold without

clearing his debt, it could not be done.

Without prejudice to his defence, the learned counsel

for the appellant submitted that even if the aforesaid

contents in the complaint are accepted as correct, the act of

the appellant was not as an Advocate and, therefore, could

not amount to committing misconduct. In order to appreciate

this contention one may refer to Rule 22 under Chapter II of

the Standards of Professional Conduct and Etiquette framed by

the BCI in exercise of its power under Section 49(1)(c) of

the Advocates Act, 1961. This Rule reads as under:

“22. An advocate shall not, directly or indirectly, bid for or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any other person, any property sold in the execution of a decree or order in any suit, appeal or other proceeding in which he was in any way professionally engaged. This prohibition, however, does not prevent an advocate from bidding for or purchasing for his client any property which his client may himself legally bid for or purchase, provided the Advocate 4 C.A. No. 15540/2017

is expressly authorised in writing in this behalf.”

Section 35 of the Advocates Act, 1961, as per which

punishment can be awarded to an Advocate for misconduct makes

the following reading: -

35. Punishment of advocates for misconduct.— (1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.

(2) The disciplinary committee of a State Bar Council 2[***] shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State.

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely:—

(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit;

(d) remove the name of the advocate from the State roll of advocates.

(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India. (5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

It is very clear from the provisions of Section 35 that

punishment can be awarded to an Advocate if he is found

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guilty of professional or other misconduct. Rule 22 is the

relevant Rule in the instant case which proscribes an

Advocate from directly or indirectly making a bid for or

purchase either in his own name or in other's name for his

own benefit or for the benefit of any other person any

property sold in the execution of a decree or order in any

suit, appeal or other proceedings in which he was in any way

professionally engaged.

Admittedly, in the instant case, the complainant was

selling the property to the intending buyer which was an

arrangement between them unconnected with any legal

proceedings. The said property was not being sold in

execution of any decree, in which proceedings the appellant

was engaged, as noted above. Insofar as the filing of the

Suit by the appellant on behalf of the complainant is

concerned, that had resulted into passing of decree and the

proceedings had concluded. Even as per the complainant's own

admission, it is much thereafter that the complainant

intended to sell the property in question when he found

himself in need of money. It is this sale which the

appellant tried to interdict. He was not doing so in the

capacity of an Advocate. As per him, the complainant was not

authorised to sell the property without repaying his debt.

Whether the appellant was right in this submission or not, is

not relevant. What is relevant is that this act has nothing

to do with the professional conduct of the appellant.

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Therefore, the very initiation of disciplinary proceedings

against the appellant by the State Bar Council was improper

and without jurisdiction.

We, accordingly, allow this appeal and set aside the

impugned orders passed by the Bar Council of India.

........................, J.

[ A.K. SIKRI ]

........................, J.

[ ASHOK BHUSHAN ]

New Delhi;

December 11, 2017.

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