Bangalore District Court
Sri H.S. Shankara Sharma vs Sri M.S. Nagaraj on 25 June, 2015
BEFORE THE COURT OF SMALL CAUSES,
BANGALORE, SCCH-4
DATED THIS THE 25th JUNE-2015
PRESENT:
Sri.SADANANDA.M.DODDAMANI
B.A., LL.B.,
XVIII Addl.Judge, Court of Small Causes,
Member, MACT-4, Bangalore.
SC NO.591 OF 2012
Plaintiff Sri H.S. Shankara Sharma,
Advocate,
Aged 72 years,
R/at No.82, 2nd Main,
S.B.M. Colony, Ananda Nagar,
Bangalore - 560 029.
(By Sri.S.S., Advocate)
V/s.
Defendant Sri M.S. Nagaraj,
S/o Late M.S. Shama Rao,
Aged 68 years,
No.304, 20th Cross,
6th Block, Jayanagar,
Bangalore - 560 082.
(By Sri.S.D.H., Advocate)
2 SCCH-4
SC No.591/2012
JUDGMENT
This is a suit filed by the plaintiff for recovery of Rs.16,000/- with interest at the rate of 18 % p.a. from the defendant.
2. In nut shell the case of the plaintiff is as under:-
The plaintiff is a practicing advocate by profession in the year-2007, October 25th, the defendant entrusted to plaintiff for filing two criminal complaints under Section 200 of Cr. P.C. Read with Section 138 of NI Act.
It is further stated that, at the time of entrusting the said criminal cases the defendant agreed to pay Rs.15,000/- towards professional charges of fees and another Rs.2,000/- towards filing charges including affidavit, process fees for summons and typing charges etc. The defendant had promised to pay the professional charges after receipt of the amount from the accused, as he was confident that the accused will pay the amount after receipt of summons, which was later on proved as false.
3 SCCH-4 SC No.591/2012 It is further stated that ultimately the defendant has succeed in the above said two criminal cases and accused even after the order fail to clear the fine amount in both the cases, so the accused was brought before the court under the warrant with the assistance of local police.
It is further stated that on 06-02-2012, the accused paid the amount as ordered by the Court by way of compensation and also paid the amount ordered towards state expenses to Government Account. The defendant after receipt of the total amount in both the cases cleverly escaped out of the Court without adhering to his promise towards payment of fees to his advocate i.e., the plaintiff.
It is further stated that all his efforts and request to the defendant to pay his legal fees went in vein, so ultimately he caused notice on 21-03-2012 calling upon him to pay a sum of Rs.15,000/- along with a further sum of Rs.1,000/- towards the notice charges. The defendant inspite of receipt of the said notice and gave evasive reply by contending that he agreed to pay Rs.5,000/- towards fee and he had paid the same on 06-02-2012 in the court premises itself in the presence of one Sri.N.N.L.Rao, a friend of plaintiff. Under the above said circumstances the 4 SCCH-4 SC No.591/2012 plaintiff has filed the present suit and accordingly prays for to decree the suit.
3. In response to the suit summons/notice sent by this court, the defendant appeared before the court through his counsel and filed his detailed written statement by denying all the plaint averments.
4. The defendant in his written statement contended that he has entrusted the case to the plaintiff, but he has not agreed to bear Rs.15,000/- towards professional charges/fees, since both the cases was filed for recovery of total amount of Rs.32,000/- only. He further stated that with the true faith and confidence, he has paid Rs.10,000/- to the plaintiff as his fees on signing the vakalath and also paid Rs.7,500/-as conveyance charges and fees for 15 hearing dates. He further stated that the said amount was paid by him in the presence of one Sri. N.N.L.Rao, who is retired officer of SBM and also their colleague. He further stated that on 06-02-2012 he paid Rs.5,000/- an additional advocate fee to the plaintiff. He further stated that he also incurred an amount of Rs.13,000/- for the purpose of arrest of accused, what he stated that he has paid the said amount to the police 5 SCCH-4 SC No.591/2012 station authorities to arrest the accused. He further stated that he has also spent Rs.7,500/- for dinner, tiffin and coffee expenses to the plaintiff advocate and his friends/advocates on the date of the hearing of the cases. It is further contended that, in all he has incurred Rs.48,000/- to the plaintiff for recovery of Rs.32,000/-, which shows the intention of the plaintiff which is against the principles of professional ethics and natural justice. It is further stated that the plaintiff advocate has also collected of Rs.20,000/- on 06-02-2012 and was kept by himself in the Court hall given by the accused. On constant follow-up and persuasion he was able to collect back only Rs.10,000/-. It is contended that the plaintiff is not entitled for any amount much less as claimed in the present suit etc. On these grounds and among other grounds, the defendant sought for the dismissal of the suit.
5. The plaintiff in order to establish his case himself got examined as PW.1 and got marked 2 documents as Ex.P.1 and 2 and closed his side evidence. The defendant in order to establish his case himself got examined as DW.1 and no documents were marked on his 6 SCCH-4 SC No.591/2012 behalf, but he has examined one witness as DW.2 and closed his side evidence.
6. Heard the arguments. The learned counsel for the plaintiff in support of his arguments has relied upon the following decisions.
1. AIR 2000 AP 518
2. 111(2007) BC 75 Madras High Court
7. On the basis of the above pleadings, the points that would arise for my consideration are:-
(1) Whether the plaintiff proves the contents of para No.3 to 7 of his plaint?
(2) Whether the defendant proves that in all he has paid Rs.48,000/- to the plaintiff as contended by him in his written statement and as such he is not due any amount to the plaintiff?
(3) Whether the plaintiff is entitled for interest at the rate of 18 % p.a. as claimed by him?
(4) What decree or order?
7 SCCH-4 SC No.591/2012
8. My answer to the above points are as follows:-
Point No.1- In the Affirmative. Point No.2-In the Negative.
Point No.3-Partly in the Affirmative. Point No.4- As per final order for the following REASONS
9. Point No.1 & 2:- Both these points are interconnected, therefore they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
10. The plaintiff in order to prove his case himself got examined as PW.1 and filed his affidavit by way of examination-in-chief, wherein he reiterated all the averments made in the plaint and further on oath stated before the court that he is a practicing advocate and defendant entrusted him for filing two criminal complaints under Section 200 of Cr. P.C. Read with Section 138 of NI Act. He further stated that, the defendant agreed to pay Rs.15,000/- towards professional charges and another Rs.2,000/- towards filing charges. He further stated that 8 SCCH-4 SC No.591/2012 the defendant had promised to pay the professional charges after receipt of the amount from the accused. The cases filed by him were ultimately ended in conviction of the accused. The accused in the said criminal cases, even after the order passed by the criminal Court did not bothered to clear the fine amount. The accused was brought before the court under the warrant and on 06-02- 2012 he paid the amount ordered by the Court by way of compensation. Inspite of that the defendant after receipt of the said amount failed to pay his fees as promised by him. He further stated that all his efforts to recover his professional fees went in vein, he caused notice on 21-03- 2012 as per EX.P.1 calling upon him to pay a sum of Rs. 15,000/- along with a further sum of Rs.1,000/- towards the notice charges. Inspite of receipt of the said notice the defendant failed to give his profession fees and gave evasive reply by contending that he agreed to pay Rs.5,000/- only towards fees and he had paid the same on 06-02-2012 in the court premises itself in the presence of one Sri.N.N.L.Rao. So, he has filed the present suit for recovery of his professional fees and accordingly prays for to decree the suit.
9 SCCH-4 SC No.591/2012
11. In support of his case, he got marked two documents Ex.P.1 is the legal notice caused to the defendant and Ex.P.2 is the reply notice given by defendant.
12. The defendant in order to establish his case himself got examined as DW.1 and filed his detailed affidavit by way of an examination-in-chief, wherein he reiterated all the averments made in his written statement and further on oath stated before the court that, he has not at all agreed to pay Rs.15,000/- towards professional charges/fees. He further stated that, he has incurred in all Rs.48,000/- just for the purpose of recovery of Rs.32,000/-. He further stated that, he has paid Rs.10,000/- to the plaintiff after signing the vakalath. He further stated that, he has also paid Rs.5,000/- towards issuance of process and also paid Rs.7,500/- to the plaintiff as conveyance charges. He further stated that, he has also spent Rs.7,500/- for the purpose of dinner, tiffin and coffee expenses to the plaintiff advocate and his friends/advocates. He further stated that, he has spent in all Rs.13,000/- in the police station to execute process as issued by the court. So, he stated that, the very act and intention of the plaintiff clearly shows that, it is against to 10 SCCH-4 SC No.591/2012 the principles of professional ethics and natural justice. He further stated that, plaintiff has also collected Rs.20,000/- on 06-02-2012 and which was kept by himself in the court. But on constant follow-up and persuasion he was able to collect back only Rs.10,000/-. So, he stated that he is not due any amount much less the amount as claimed by the plaintiff. So, in view of his above evidence he prays for to dismiss the suit.
13. The defendant in order to establish his case, also got examined one witness as DW-2. On going through his evidence, it shows that he has totally supported the case of the defendant and on going through the affidavit filed by him by way of examination in chief, it shows that he has stated whatever the things stated by DW-1 in his evidence.
14. The learned counsel for the plaintiff during the course of his arguments contended that, the plaintiff is an advocate by profession. The defendant entrusted him criminal cases Under Section 138 of NI Act. The defendant agreed to pay Rs.15,000/- towards his professional fees and Rs.2,000/- for filing charges. The defendant promised to pay the professional charges after 11 SCCH-4 SC No.591/2012 the receipt of the amount from the accused. He further contended that, the criminal cases filed by the plaintiff were ended in conviction. In pursuance of the arrest warrant issued by the criminal court, the accused in the said criminal cases was brought before the court. On 06- 02-2012 he paid the amount as ordered by the court in the court hall. He further contended that inspite of receipt of amount by defendant from the accused, he has failed to pay the professional charges of the plaintiff. Though plaintiff has made all kind of efforts to get his professional fee, but his efforts went in vein. So, he caused notice as per EX.P.1 calling upon him to pay the amount as claimed by the plaintiff. The said notice was duly served upon the defendant, instead of paying the amount the defendant gave evasive reply as per Ex.P.2 by contending that he has agreed to pay Rs.5,000/- only and he has paid the said amount on 06-02-2012 in the presence of N.N.L. Rao who is none other than DW.2.
15. He further contended that, though the defendant has taken defence in his written statement that, he has spent total amount of Rs.48,000/- for recovery of just Rs.32,000/-. So also he contended that, he paid Rs.10,000/- to the plaintiff at the time of signing the 12 SCCH-4 SC No.591/2012 vakalath and also contended that, the amount of Rs.20,000/- paid by the accused in the court on 06-02- 2012 was taken by the plaintiff himself, but in order to substantiate all those contention no acceptable evidence has been placed before the court. Per contra the oral and documentary evidence adduced and produced on behalf of the plaintiff clearly shows that, the plaintiff has made out grounds to grant the decree as sought by him. He further contended that, admittedly the plaintiff is advocate by profession and whenever the clients failed to pay the professional charges, the counsel who conducted the case on behalf of his client/party is entitled to file a suit for recovery of his professional fees. In support of his contention, he has relied upon two decisions which are as follows.
1. AIR 2000 AP 518
2. 111(2007) BC 75 Madras High Court
16. On the basis of the above two decisions what he contended that, whenever the client/party failed to pay agreed professional fees, the counsels/advocates are entitled to recover the said amount by filing a case.
13 SCCH-4 SC No.591/2012
17. So, in view of above arguments and decisions, he urged to answer point no.1 for consideration in the affirmative and point No.2 for consideration in the negative.
18. On the contrary the learned counsel for the defendant during the course of his arguments contended that, the plaintiff claims that for having filed two criminal cases, the defendant has agreed to pay Rs.15,000/- towards his professional charge. He further contended that, the defendant has not at all agreed to pay that much of amount as claimed by him. In fact the defendant has agreed to pay Rs.5,000/- and in fact he has already paid the said amount. He further contended that, for the recovery of Rs.32,000/-, the defendant has spent nearly Rs.48,000/-. What he contended that, apart from the professional fees of Rs.5,000/- as agreed by the defendant, he has paid Rs.10,000/- to the plaintiff, at the time on signing vakalath and also spent Rs.7,500/- towards conveyance charges. So, also he spent Rs.7,500/- for the purpose of coffee and tiffin of plaintiff and his friends. He further contended that, he has spent nearly Rs.13,000/- in the police station for the purpose of 14 SCCH-4 SC No.591/2012 execution of the process issued by the Court. He further contended that the very evidence given by DW.1 and the defence taken by him in the written statement shows that an amount of Rs.20,000/- paid by the accused was collected by the plaintiff on 06-02-2012 and he himself taken the said amount. But subsequently on constant followup and persuasion he was able to collect back only Rs.10,000/-.
19. He further contended that the factum of Rs.10,000/-paid to the plaintiff by the defendant and also the factum of Rs.48,000/- spent by him, during the course of proceedings of criminal cases has been proved by defendant through his witness i.e., DW.2. He further contended that, the witness examined on behalf of the defendant as DW.2 has spoken about the stand taken by the defendant in his written statement. He further contended that inspite of suitable reply given by the defendant to the notice caused by the plaintiff, again the plaintiff for the best reason known to him has filed the present false and frivolous suit in order to make wrongful gain. So, what he contended that, the very act and intention of the plaintiff shows that, it is against the professional ethics and natural justice. He further 15 SCCH-4 SC No.591/2012 contended that, the duty of the advocates representing the cases of the litigants is to give good service, when they approached them with good faith and confidence. In the present case the very act and conduct of the plaintiff shows that his act is against the professional ethics. He further contended that, absolutely no materials has been placed before the court to show that the defendant has agreed to pay the professional charges as claimed by the plaintiff, when such would the case, the suit of the plaintiff is liable to be dismissed. So, in view of his above arguments, he urged to answer point No.1 for consideration in the negative and point No.2 in the affirmative.
20. In the light of the arguments canvassed by the respective counsels for the parties I have gone through the records and the decisions as relied upon by the learned counsel for the plaintiff. Admittedly this is a suit filed by plaintiff for recovery of professional charges. It is the case of the plaintiff that, the defendant has entrusted two criminal cases Under Section 138 of NI Act. So, also it the case of the plaintiff that, the defendant has agreed to pay Rs.15,000/- as his professional charges and also agreed to pay the said amount after recovery of the said amount 16 SCCH-4 SC No.591/2012 from the accused in the criminal cases. It is the further case of the plaintiff that, though the defendant has succeeded in the said criminal cases and recovered the amount, but he has failed to pay his professional fees. Under the above circumstances he has come up with the present suit for recovery of his professional fees.
21. Per contra it is the contention of the defendant that he has not at all agreed to pay the profession fees as claimed by the plaintiff. In fact he has spent Rs.48,000/- for recovery of just Rs.32,000/- and he has paid more than the agreed professional fees to the plaintiff. Inspite of that, the plaintiff for the best reasons known to him has come up with the present false and frivolous suit in order to make wrongful gain.
22. In the light of the above rival stand taken by the respective parties and also on going through the records it shows that, absolutely there is no much dispute with regard to the factum of two criminal cases entrusted by the defendant to the plaintiff. So, also it is an undisputed fact that, the criminal cases filed by the plaintiff on behalf of the defendant has ended in the conviction of the accused and also the fine amount as ordered in the said 17 SCCH-4 SC No.591/2012 two criminal cases are also recovered from the accused. The main dispute between the parties is that, it is the contention of the plaintiff that, the defendant has not paid agreed professional fees of Rs.15,000/-.
23. On the contrary it is the contention of the defendant that, he has paid morethan agreed professional fees and spent of Rs.48,000/- for recovery of just Rs.32,000/-. In the light of the above contention taken by the respective parties, on going through the records, it shows that the learned counsel representing the defendant during the course of cross examination of PW.1 suggested that is their any written agreement or commitment letter with regard to his professional fees, for that he said no.
24. So far as the said suggestions made by the learned counsel for the defendant to the plaintiff is concerned it can be said that normally no counsels would enter into agreement with regard to their professional fees or issued commitment letter. The persons who intended to file a case by having confidence and faith in a particular counsel would entrust the work and also he would pay the fees as charged by them. When that would be the case 18 SCCH-4 SC No.591/2012 merely there is no neither oral agreement nor commitment letter with regard to the professional charges is concerned what ever the case set up by the plaintiff cannot be disbelieves.
25. The learned counsel for the defendant in order to prove the case of defendant has relied upon the evidence of DW.1 & 2. Upon perusal of the affidavits filed by them by way of their examination in chief, it shows that both the affidavits are in stereo type. The defendant contended that an amount of Rs.10,000/-was paid to the plaintiff in the presence of N.N.L.Rao, who is none other than the DW.2. He further contended that, the said person always accompanying the defendant during the course of proceedings which was filed by the plaintiff on behalf of the defendant. But though the defendant claims like so, upon perusal of cross examination of DW.2, it shows that it goes to falsify the contention taken by the defendant in his written statement and evidence. At this juncture, it would be the relevant to quote the evidence given by DW.2 during the course of his cross examination at page No.5, 6th line from the top with regard to the aspect as stated above, which reads as under, 19 SCCH-4 SC No.591/2012
26. "I was not accompanying the defendant in his recovery case filed by him. The defendant has told me that he has spent Rs.48,000/- for filing the case for recovery and I do not have personal knowledge in this regard"
27. The above evidence given by DW.2 during the course of cross examination clearly goes to show that, he has stated quite contrary to the things as stated by the defendant in his written statement and evidence. From the above evidence of DW.2 it would be culled out that DW.2 does not no anything about the transactions in between the plaintiff and defendant and the proceedings of the criminal case filed by the plaintiff on behalf of the defendant. When such would be the case it is need less to say that the evidence of DW.2 would not come to the aid of defendant case.
28. The defendant in his evidence claims that on 06-02-2012 the accused in the criminal case paid Rs.20,000/- in the court hall and the said amount was taken by the plaintiff and after the constant follow-up and the persuasion he was able to collect back only Rs.10,000/-. So far as the said contention taken by the 20 SCCH-4 SC No.591/2012 defendant is concerned, it can be said that if according to him the accused paid Rs.20,000/- on 06-02-2012 in the court hall definitely that would reflect in the order sheet of the said criminal case and also certainly it would be bear the signature of the defendant only for having receipt of the said amount, to prove that aspect he has not placed a scrap of paper before the court. When such would be the case merely on the basis of bald contention taken up by the defendant in his written statement as well as evidence, whatever the stand taken by him cannot be accepted in the absence of proving the said aspect with cogent and convincing evidence.
29. As it is already stated above the plaintiff had filed the present suit for recovery of his professional fees now the important point to be considered here is that whether the recovery of professional fees would amount to debt or not? In my view certainly yes, in the light of the dictum laid down by their lordship in the decision rendered in III (2007) BC 75 Madras High Court wherein, it was held by their lordship as under:
Tamil Nadu Retrenched Census Employees Association-Appellant V/s Thennan- Respondent 21 SCCH-4 SC No.591/2012 Negotiable Instruments Act, 1881-Section 138-
Criminal Procedure Code, 1973-Section 482-Dishonour of Cheque-Arrears of legal fees due to Advocate is legally enforceable debt-Profession is noble one but when amount payable to Advocate towards fees found due, it becomes debt-Though Advocate in legal profession is supposed to do service to public, he is entitled under law to receive fees for service he does- petition seeking quashment of criminal proceedings unsustainable.
Further at para-11 of the said judgment it was observed by their lordship as under:
" The profession, of course, is a noble one. But when the amount payable to the Advocate towards fees is found due, then it becomes a debt. Such debt is legally enforceable. Though the Advocate in the legal profession is supposed to do service to the public, he is entitled under law to receiver fees for the service he renders. When such amount is not paid when it becomes due, it become a debt".
22 SCCH-4 SC No.591/2012 Looking into the dictum laid down by their lordship, it can be said that, the above said decision is aptly applicable to the present case in hand.
30. As it is already stated above absolutely no acceptable neither oral or documentary evidence has been placed before the court by the defendant to establish the stand taken by him in his written statement. Per contra the evidence adduced on behalf of the plaintiff it shows that, there is some force in the claim made by him. So, also advocate profession being nobel profession, no person would come forward to file a case for recovery of his profession fees without any valid reasons and he would not act against his professional ethics. So, by analyzing the over all facts and circumstances of the case and evidence adduced on behalf of the respective parties, this court is of the opinion that, the plaintiff has succeeded to prove point No.1 for consideration and defendant has failed to prove point No.2 for consideration. Accordingly point No.1 is answered in the Affirmative and Point No.2 in the Negative.
31. Point No.3: The plaintiff claims that, the defendant has failed to keep up his promise i.e., to say the 23 SCCH-4 SC No.591/2012 defendant failed to pay agreed professional fees, so, the circumstances forced him to file the present suit. The plaintiff claims interest at the rate of 18 % p.a. on the claim amount. Admittedly the records shows that there is no material to show, in case the defendant failed to pay agreed professional fees is liable to pay interest. When such would the case it can be said that, the interest claimed by the plaintiff on the claim amount is seems to be very exorbitant. However the records shows that there is lapses on the part of the defendant in paying the professional fees, by considering the said aspect if the defendant is ordered to pay interest at the rate of 6 % p.a. on the claim amount that would suffice the ends of justice. Accordingly, Point No.3 for consideration is answered partly in the Affirmative.
32. Point No.4:- In view of my findings on point No.1 to 3 as above, I proceed to pass the following :-
: ORDER :
The suit of the plaintiff is hereby decreed with costs.
24 SCCH-4 SC No.591/2012 The defendant is directed to pay Rs.16,000/- with interest at the rate of 6 % p.a. from the date of filing the suit till the date of realization, within three months.
Failing which the plaintiff is at liberty to take steps as per law.
Draw decree accordingly.
(Dictated to the stenographer, transcript thereof is corrected and then pronounced by me in the Open Court on this the 25th day of June 2015) (SADANANDA.M.DODDAMANI) XVIII Addl.Judge, Court of Small Causes, Member, MACT-4, Bangalore.
Annexure:-
List of witness examined for the plaintiffs:-
PW1 Sri H.S. Shankara Sharma List of witness examined for the defendants:-
DW1 Sri M.S. Nagaraj
DW2 Sri N.N. Laxminarayana Rao
List of documents marked on behalf of the 25 SCCH-4 SC No.591/2012 plaintiffs :-
Ex.P1 Office Copy of Legal Notice Ex.P2 Reply to Notice List of documents marked on behalf of the defendants :-
Nil (SADANANDA.M.DODDAMANI) XVIII Addl.Judge, Court of Small Causes, Member, MACT-4, Bangalore.