1. This Chamber Order was taken out by defendant No.1 before the Prothonotary and Senior Master of this Court for obtaining discharge of his Solicitors and for handing over papers and proceedings. The Papers and proceedings have already been handed over to him by the firm of Solicitors (the firm) representing him. That matter has not been disputed.
2. The Defendant No.1 contended in the Chamber Order that the firm has not given him the NOC for filing the Vakalatnama of the new advocates, whom defendant No.1 seeks to appoint, on the ground of non payment of certain outstanding fees as shown in the correspondence between the parties. The learned Prothonotary and Senior Master of this Court has considered the contentions of the parties and held that the firm stood discharged by his order dated 25th July, 2012.
3. It is that order which is sought to be challenged by praecipe filed before this Court.
4. It is contended by the firm that as officers of the Court their right to obtain reasonable and legitimate fees charged by them to their client must be protected by the Court and subject to such protection the order of discharge may be made with which the firm would have no complaint.
5. Defendant No.1 appeared in person against his own firm of solicitors. He showed the Court the correspondence between them and contended that its fees have been settled and paid as settled so that the refusal to give discharge was unreasonable and hence the order of the Prothonotary and Senior Master must be upheld. The firm has sent its bill to Defendant No.1 under its letter dated 11th December, 1996. Defendant No.1 claims that he has challenged each item of the firm's bill dated 11th December, 1996 in his letter dated 8th July 1997 which has not been replied by the Solicitor. He claims that if that letter is read the Court would be satisfied that nothing is due and payable and hence the resistance to allow discharge of the Advocate by Defendant No.1 is inequitable and unjust.
6. The Solicitor of Defendant No.1 has shown the bill sent to Defendant No.1 under the firm's letter dated 26th December 2011. There are various heads of charges for various matters for which the firm represented Defendant No.1. The item No.21 in the statement annexed to the letter shows the amount payable in the above suit. The statement is made as of 9th December 2011. The amount was payable under the bill dated 11th December 1996. The Solicitor has also produced the letter dated 11th December 1996 itself, which was annexed to the bill of costs in the above suit. The total amount claimed by the Solicitor was Rs.5.95 lakhs which was due and payable on the date of the letter after giving credit of Rs.2.10 lakhs paid earlier by the defendant No.1. The statement shows Counsel's fees as well as Solicitor's charges. It is stated that even after this bill Rs. 2 lakhs has been paid by Defendant No.1 in part-payment of the bill. There was, therefore, no dispute with regard to the Solicitor's fees until after December 1996.
7. It is the case of Defendant No.1 that in 1997 he was to settle the dispute and file consent terms. He requested his Solicitor to apply for consent terms. The Solicitor failed to apply despite instructions. He has waited for 15 years. He now desires to settle the dispute through another Advocate. He, therefore, applied for discharge of his Solicitor which has been granted.
8. The learned Prothonotary and Senior Master of this Court granted his application essentially considering the judgment of the Supreme Court in the case of R.D. Saxena Vs. Balram Prasad Sharma 2000(7) SCC 264. The judgment relates not only to the claim of lien, but to the moral obligation of the Solicitor in allowing his client to change his Advocate. It is observed that the litigant is free to change his Advocate when he desired and a lien cannot be exercised by the Advocate.
9. The firm has not exercised lien over any papers. All the papers are stated to have been taken away by Defendant No.1. Hence, the question is only of the obligation of the firm not to resist discharge. A firm who charges an exorbitant fee, which the client cannot and will not pay, certainly cannot resist its discharge, if the client desires to change his Solicitor. It is then that the judgment of the Supreme Court would be applied.
10. However, a Solicitor is entitled to charge his fees. This would be the fees that he would command and not only demand. This would, therefore, be all reasonable fees charged from time to time as per his standing. Those fees would have to be paid. The moral obligation of the Solicitor does not grant a licence to the client to discard his Solicitor at will after he has devoted his time, effort and skill and put in hours of work for which he has charged his client. Such client would be allowed to obtain discharge only upon payment of just fees of the Solicitor. It is in that regard that the Solicitor has drawn my attention to the Gujarat High Court judgment in the case of AlokikTrading and Investment Pvt. Ltd. and 3 Ors Vs. C.R. Iyyer 2000(1) GLR 495. It shows how the Court has a dual duty – to protect a litigant who desires to change the Advocate and to protect the Advocate for payment of his just fees and not relegate him to filing a separate suit. The right of discharge must, therefore, complement the right to fees.
11. Defendant No.1 sought the court's permission to be assisted by an advocate. Though the firm had not been discharged, he was allowed to be represented in this application by another advocate. His advocate has been heard. The firm through its counsel showed the court the law with regard to obtaining discharge. The position of facts and law between the parties must be first considered.
12. This Court cannot go in to the arithmetical calculation of the amount of fees charged by the firm and paid or left unpaid by the client to determine the amount of fees due and payable. However, a letter of the firm dated 11th December, 1996 sending their Bill of Costs has been relied upon by both the parties and has been shown to the Court. This bill is in respect of above suit. It refers to 179.5 hours of work of the firm from 1988 to 1996 and the corresponding fee charged for such hours of work. It further shows fees of various counsel. It is not disputed that those counsel had appeared for defendant No.1 at various stages in the suit. The bill of 1996 has not been disputed. The bill is for Rs.8.05 lacs. It gives credit for sum of Rs.2.10 lacs. The balance due and payable is shown to be Rs.5.95 lacs. After the bill was received admittedly Rs.2 lacs have been paid. In certain further correspondence relied upon by defendant No.1 he claims that the Senior partner of the firm agreed to settle the dispute if he withdrew certain allegations he made in his letter dated 8th July, 1998. Defendant No.1 accordingly withdrew the letter written to the firm. Thereafter he paid the settled amount of Rs.11,000/- to the firm by cheque. That amount has not been credited.
13. The firm refuted that there was any such settlement. In fact the affidavit in respect of Chamber Order does not show that that the settlement was for Rs.11,000/-. Paragraph 4 of the affidavit of defendant No.1 shows that the firm was to settle the dispute provided he withdrew his letter dated 8th July, 1997. He withdrew the said letter. If that was so no consideration was payable upon such withdrawal. Yet he paid Rs.11,000/-. The cheque of Rs.11,000/- was given on 11th December, 2000 and has been returned on 22nd February, 2001, about two months thereafter. The sum of Rs.11,000/- is, therefore, seen to be paid by defendant No.1 of his own volition. It bears no reference to any amount claimed by the firm as the amount of outstanding dues being settled. When the bill of 1996 shows Rs.5.95 lacs out of which admittedly Rs.2 lacs are paid, the settlement amount cannot be accepted to be of Rs.11,000/-. The affidavit of defendant No.1 itself shows that it is a unilaterally given amount.
14. Counsel on behalf of Defendant No.1 has contended that thereafter the firm has not made a single demand for the outstanding amount. Hence he seeks to contend that that would show that the amount payable as fees is settled.
15. It appears that after many years certain mediation took place. A “mediation award” came to be passed which was to be executed as a decree by way of certain consent terms between the parties. Though this aspect is not fully understood, it appears that the parties had settled and an order in terms of the settlement had to be obtained. The firm refused to act upon any such settlement for a number of years and hence defendant No.1 sought to have the firm discharged to appoint new advocates to represent him in ultimately settling the suit. It is then that the firm of solicitors has sent their bill annexed to their letter dated 26th December, 2011 relied upon by defendant No.1 in the affidavit in support of Chamber Order. The bill of costs show the outstanding bill of defendant No.1 for various matters including the above suit. The amount payable in respect of the suit is, however, the largest amount claimed. This amount bears reference to the earlier bill sent in December, 1996. From 3.95 lacs which remained payable after the part payment of Rs.2 lacs was made, a sum of Rs.58,000/- is stated to have been paid thereafter, leaving a balance of Rs.3.37 lacs as the fees of the firm in the above suit. It is this amount that the firm claimed to be paid to give discharge. It is fairly conceded that the other amounts claimed by firm in the bill of costs cannot be claimed to obtain discharge.
16. It has to be seen whether discharge be given with or upon payment of the aforesaid fees or a part thereof as reasonable fee of the solicitors. Under Order 3 Rule 4(2) of the Civil Procedure Code the appointment of a pleader for a party in any suit or proceeding would be in force until it is determined with the leave of the Court as shown therein. Hence it is contended that the appointment of the firm must continue until the Court grants leave. The fact that the Court has to grant leave would mean and imply that the leave cannot granted mechanically. It has to be granted upon seeing the facts of the case and the reasonableness of the application. The application for discharge may be made either by the pleader himself or by the client. If it is made by the client, as in this case, leave can be granted upon reasonable conditions being complied. This would be with regard to the payment of the fees of the pleader and papers of the client. If the reasonable fees of the pleader are not paid, leave may be refused and would have to be refused.
17. Indeed the provision of leave is seen to have been made with the purpose and object of keeping the superintendence and supervision of the court over pleaders as well as their clients.
18. Under Section 34 of the Advocates Act 1961 the High Court may make rules in this regard.
19. The rules of the Original Side of the Bombay High Court Rules framed under Section 34 of the Act are in Appendix VI. Rule 8 of the Rules to which my attention has been drawn, refers to the provisions of Order 3 Rule 4 of the CPC also. The Rule 8 (5) of the rules in Appendix VI provides that when party seeks to discharge his advocate, he may apply to the Court for the order of discharge following the procedure prescribed and if the Court is satisfied, it may pass orders discharging the advocate and while doing so impose such terms and conditions as it may deem proper. The Court is, therefore, required to be satisfied that the case for discharge is made out. The Court would have to consider the aspects of the fees of the pleader/advocate and the papers of the client. The terms and conditions that the Court may specify would be with regard to either or both of these aspects. A reading of the aforesaid rule also shows that it would be upon the satisfaction of the Court that both the pleader as well as client have been dealt with reasonably, that an order of discharge would be made. It is common knowledge that the pleader cannot, by simplicitor wanting discharge, obtain a discharge. He would have to inform the client, return the papers and then claim discharge. Similarly, therefore, a client cannot simplicitor require a pleader who has worked for him to be discharged to engage another pleader without paying the fees of the pleader. That would tantamount to encouragement of abuse. A pleader and advocate or solicitor is an officer of the Court and must be as much protected as the litigant himself for whom the Courts are established. Consequently the satisfaction of the Court with regard to the protection of both these parties is required.
20. In the case of NaryandasSundarlal Rathi Vs. Narayandas Harbhagal AIR 1932 Bombay 363 this court sought to protect the costs incurred by the Solicitor before he could be discharged by a lien which could be claimed by the Solicitor upon the funds, money and property received for his client and a general lien upon the papers and documents of his client.
21. In the later case of DharamdasKachudas Vs. Kachudas Makanji AIR 1933 182 this Court disagreed with the earlier case in that it held that the attorney could not insist on being employed by the client even after the client did not desire to employ him as his attorney. It held that the attorney has lien upon the papers but could not insist upon it to retain himself. Hence if the attorney's fees were not paid, the papers may not be returned and the attorney may claim for his unpaid costs, but a change of attorney would be allowed.
22. The Division Bench of Calcutta High Court in the case PankajkumarGhose Vs. Sudheerkumar Shikdar AIR 1934 Calcutta 58 considered order 3 Rule 4 of the CPC, 1908. It came to be observed that there could be no change when the attorney's costs were not provided for in the order for change unless the attorney discharged himself by his misconduct. Referring to the earlier case of NagendarChunder Ghose Vs. Greendur Chunder Ghose of the Supreme Court of Calcutta of 1858 the rule laid down by Supreme Court of Calcutta came to be cited. It required the payment of costs as condition precedent to granting of orders of the change of the attorney. Hence it came to be concluded that no order for change for attorney may by made unless provision was made for payment to the attorney.
23. New India Assurance Company Ltd. V/s. A.K. Saxena AIR 2004 SC 311 as also the case of RB Saxena supra relied upon by defendant No.1 this aspect was considered. It held that the advocate's fees could not be adjusted against the advocate's own personal liability to the client. That aspect, dealt with in Paragraph 12 of the judgment, in the case of R B Saxena supra is wholly different. Both these judgments only speak about the lien which cannot be claimed by an advocate under the Advocates Act and the Bar Council Rules. They do not speak of the professional fees of attorney who has otherwise not misconducted himself. It is not the case of defendant No.1 that his solicitor has misconducted himself. The only aspect in this case to be seen is whether their fees have been fully settled or whether they remained due and payable for the work done since many years prior to discharge being claimed.
24. The case of BasudeoRam Govind V. Vachha and Co. AIR 1955(4) Bom. 126 related to a solicitor seeking to proceed against the client of the opposite party with whom his client sought to settle the dispute without the assistance of the solicitor and before payment of the fees of the solicitor. Though the solicitor was held entitled to claim the amount deposited in the Court which was to the credit of the suit, he was held not entitled to proceed against the opposite party simplicitor upon the settlement of the suit by his client with the other side in the absence of collusion between the parties. In Paragraph 14 of the Judgment, to which my attention was drawn by counsel on behalf of the firm, Chief Justice Chagla enumerated the various facilities which the court granted to a solicitor as its officer; his costs could be taxed, he could get a pay order from the chamber Judge which he could be executed as a decree. The Court gave its own officer who is the solicitor “equitable interference” by the Court. That would be the equitable jurisdiction exercised by the Court to grant leave under Order 3 Rule 4(2) of the CPC. In exercise of such equitable jurisdiction the Court may allow the solicitor to recover the fees even from opponent but only when collusion between those two parties to deprive the solicitor of his claim of costs was seen or if the solicitor had given notice to the other party in that behalf. Upon the abolition of the dual system (which was then prevalent) the solicitor would be left with neither of these remedies. He would require to file a suit against the client to recover his costs. It is in this regard that the leave to be granted under Order 3 Rule 4(2) of the CPC would assume importance. The Court would protect its officer against his client seeking the discharge if his fees are not paid. That would be the only protection now left to a firm of advocates representing the litigant in this Court.
25. My attention has been further drawn to paragraph 23 of the Judgment of Justice J.C. Shah in the case of Basudevsupra. The observation in the paragraph is that the solicitors have always been regarded an officials entitled to special protection in respect of recovery of their costs from their clients. This jurisdiction was inherited from the Supreme Court Judicature at Bombay (which was well before the Bombay High Court was itself established in 1862) A solicitor would be entitled to lien as also for recovery of costs payable to him by his client and that order would be enforceable as a decree so that he would not be required to file a suit to recover that amount.
26. Though the institution of solicitors has been abolished, the requirement of leave of the Court under Order 3 Rule 4(2) of CPC has not been amended. Though the solicitor's costs need not be taxed, leave of the Court which is required to be granted is upon similar principles. Hence the reasonable costs of the solicitor would have to be paid or would have to be shown to have been paid by the client who seeks to appoint another solicitor or advocate so that the Court may grant leave to do so and discharge the solicitor or advocate. Similarly under the rules of the original side of the High Court the discharge may be granted upon the terms and conditions as may be deemed to be proper.
27. In this case the bill of costs has been submitted. We are not concerned with the costs of other matters. This Court would be concerned only with the costs incurred in this suit. The costs in this suit remained unpaid. According to the firm it is Rs.3.37 lacs. According to defendant No.1 it was Rs.11,000/-. Rs.11,000/- is shown to be a unilateral payment. It is made after his letter dated 8th July, 1997 was withdrawn by him. He has not shown any writing to show that his fees were settled. Payments of cheque of Rs.11,000/- against the bill of Rs.3.37 lacs cannot be accepted as payment made in full and final settlement to settle all the disputes between the solicitor and the client. This cheque has not even been encashed. It was returned after about two months. The solicitor did not serve the client thereafter. When the client insisted upon service, the firm of solicitors insisted upon payment its fees. There was nothing more that the firm could do. The matter remained at that.
28. Now that discharge is sought, the Court may grant leave to Defendant No.1 to determine the appointment of the firm upon payment of reasonable amount of fees remaining unpaid. As aforesaid, the Court cannot go in to detailed arithmetics of the claim. However, the claim shows the payment of counsel fees of Rs.2.85 lacs. Even if Rs.2 lacs are paid thereafter and have to be adjusted towards counsel fees, Rs.85,000/- remain admittedly due and payable for the counsel who appeared for defendant No.1 in the suit. The correspondence of defendant No.1 shows the dispute with regard to the number of hours of work put in by firm of solicitors. Whereas the firm claimed to have put in 179.5 hours, defendant No.1 claims that the firm put in only 28.5 hours of work including conferences in the letter dated 8th July, 1997 of defendant No.1 addressed to the firm which later came to be withdrawn by him. Even that amount has not been paid. The solicitor's bill of costs shows Rs.5.20 lacs for about 180 hours. About 30 hours of work would constitute 1/6th of that amount. Even if that much work was done by solicitor it would require payment of another 85,000/- on that score. A total sum of approximately 1.70 lacs would be due and payable since 1996 and left unpaid. This computation is only upon seeing the admitted amounts unpaid and not upon what the firm has claimed. The firm would be entitled to atleast some more amount for the work done prior to December, 1996 which is not challenged.
29. Hence considering this fact along with aforesaid law leave may be granted to defendant No.1 for discharge of the firm upon the condition that defendant No.1 pays a sum of Rs.2 lacs to his firm of solicitors.
Hence the following order.
1. Upon defendant No.1 paying Rs.2 lacs to his present firm of solicitors, the firm of solicitors shall stand discharged.
2. Defendant No.1 shall thereafter be entitled to be represented by any other firm of advocates.
3. The order of the Prothonotary and Senior Master of this Court dated 25st July, 2012 is modified to that extent.