R.D Saxena v. Balram Prasad By Vaibhavi Perugu from Symbiosis Law School
AIR 2000 SC 3049
The present case was filed against a septuagenarian advocate for not returning case files to the Respondent bank. The crucial point raised in this particular case is whether the advocate has lien on his litigation papers or not, and whether litigation papers is considered as goods as defined under Sales of Goods Act, 1930. This case was decided on 2ndAugust, 2000 in the bench of Justice K.T. Thomas and R.P.Sethi.
R.D Saxena, now a septuagenarian, was an advocate had been practicing in the courts of Bhopal, after enrolling as a legal practitioner with the State Bar Council of Madhya Pradesh. He was then appointed as legal advisor to Madhya Pradesh State Cooperative Bank Ltd. in 1990 and the State Cooperative Bank continued to retain him as legal advisor during the succeeding years. Saxena was also engaged by the Bank to conduct cases in which the Bank was a party.
The said retainer ship did not last long. On 17-7-1993 the State Cooperative Bank terminated the retainer ship of Saxena and requested him to return all the case files relating to the Bank. Instead of returning the files, Saxena forwarded a combined bill to the Bank showing an amount of Rs 97,100 as the balance payable by the State Cooperative Bank towards the legal remuneration for which he was entitled. He also informed the Bank that the files would be returned only after settling dues to him.
Communication went on between Saxena and the Bank regarding the amount payable to him as the balance due to him. The State Cooperative Bank denied any liability owing from them to Saxena. This dispute remained unresolved and the case bundles never passed from Saxena’s hands to the Bank.
As the cases were pending, the State Cooperative Bank was impatient to have the files for continuing the proceedings before the courts/tribunals concerned. And at the same time the Bank was not likely to surrender to the terms of Saxena, which the Bank regarded as completely unreasonable. The Managing Director of the Bank filed a complaint before the State Bar Council of Madhya Pradesh on 3.2.1994. It was alleged in the complaint that Saxena is guilty of professional misconduct by not returning the files to his client.
In the reply to the complaint, Saxena submitted before the Bar Council of Madhya Pradesh that the files were not returned to the Bank but claimed that he has a right to retain files by exercising his right of lien and proposed to return the files as soon as payment is made to him. Then the complaint was forwarded to the Disciplinary Committee of the District Bar Council. The State Bar Council failed to dispose the complaint even after one year. Under section 36B of the Advocates Act the proceedings transferred to the Bar Council of India. After holding inquiry the Disciplinary Committee of the Bar Council of India reached to the conclusion that Saxena is guilty of professional misconduct and also stated that on the basis of the complaint as well as the documents available on record the Bar Council is of the opinion that Respondent (ie. Saxena) is guilty of professional misconduct and thus he is liable for punishment. The complainant is a public institution and it was the duty of the Respondent to return the briefs or case files to the Bank and also to appear before the committee to mutate his allegations made in application dated 8-11-95 and no such attempt was made by the Respondent. Aggrieved by this, Saxena filed an appeal under section 38 of the Advocates Act, 1961 in Supreme Court of India.
Whether the Advocate has lien for his fees on the litigation papers entrusted to him by his client?
ARGUMENTS OF THE PETITIONER
In the present appeal, learned counsel for the appellant opposed the failure of the Bar Council of India to consider the single defense set up by the appellant which is he has a lien over the files for his unpaid fees due to him thus has resulted in miscarriage of justice to him. Learned counsel for the appellant endeavored to base his contention on Section 171[i] of the Indian Contract Act to substantiate his argument that he has lien on the litigation papers.
ARGUMENTS OF THE RESPONDENT
Here, the Respondent i.e. The Bank contended that there was no fee payable to the appellant and the amount shown by him was on account of bloating the fees. Additionally, the respondent contended that an advocate cannot retain the files after the client terminated his engagement and hence there is no lien on such files.
The two judge bench of Supreme Court of K.T.Thomas and R.P.Sethi dismissed this appeal saying that a lawyer does not have a right of lien with respect to case files and papers of the client, wherein an Advocate has other remedies to claim his remuneration.
Case Files do not Amount to Goods
The learned counsel for appellant referred to section 171 of Indian Contract Act to substantiate his argument for which the bench said that files containing copies of the records cannot be equated with the “goods” mentioned in section 171. This word used should be understood in the sense in which it is defined in the Sales of Goods Act. Consequently, the "goods" which are referred by appellant counsel 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 off in consideration of money. In other sense, the goods referred to in Section 171 of the Contract Act are saleable goods. In the present situation, there is no scope for converting the case files into money, nor can they be sold to any third party. Hence, the reliance placed by Appellant Counsel on Section 171 of the Contract Act does not have any merit.
While dealing this issue the court have referred to the case of Union of India and Anr. v. Delhi Cloth and General Mills Co. Ltd.[ii]. In this case, it was held that to become “goods” an article must be something which can ordinarily come to the markets to be bought and sold. The court also referred to the case of Collector of Central Excise, Calcutta- I v. Eastend Paper Industries Ltd.[iii]. in which it was held that goods in this context are understood to mean as identifiable articles known in the markets as goods and marketed in the market as such.
[i] Bankers, factors, wharfingers, attorneys of a High Court and policy- brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.
[ii] AIR 1983 SC 937
[iii] (1989) 4 SCC 244
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