advocate

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., observed that an advocate who is engaged by a client has to play only one role, either of the advocate in the proceedings or the power of attorney holder.

Question for Consideration

Whether Mr Amarjeet Singh Sahni, who was acting as the power of attorney holder of the plaintiff, Mr Amit Ved/Plaintiff/Respondent and had verified the plaint on behalf of the said plaintiff could appear also as a counsel in the matter?

High Court made it clear that the practice of advocates acting as power of attorney holders of their clients, as also as advocates in the matter is contrary to the provisions of the Advocates Act, 1961.

Any advocate who is engaged by a client would have to play only one role, i.e., that of the advocate in the proceedings and cannot act as a power of attorney holder and verify pleadings and file applications or any other documents or give evidence on behalf of his client. This aspect has to be scrupulously ensured by all the Trial Courts.

Plaintiff Mr Amit Ved was a resident of Bangkok, Thailand. Mr Sahni claimed to be his power of attorney holder. Mr Sahni verified the plaint and all other pleadings on behalf of Plaintiff. He was also appearing as the counsel for Plaintiff which would be impermissible. However, since in the present case, Mr Sahni assured the Court that he would no longer act as an advocate in the matter, no further observations were being passed in this regard.

Since this Court has perused the original MoU and both Mr Pankaj and Mr Sahni, confirmed that the MoU/Deed of Settlement were executed, the petitions are disposed of as the disputes have been settled.

In view of the above, parties have been directed to appear before the trial court on the date fixed i.e. 28-01-2022 for presenting the settlement and for the recording of the same. [Anil Kumar v. Amit, 2021 SCC OnLine Del 5020, decided on 17-11-2021]

Appointments & TransfersNews

Supreme Court Collegium has, on reconsideration, resolved to reiterate its earlier recommendation for the elevation of  Sachin Singh Rajput, Advocate, as Judge in Chhattisgarh High Court.

Supreme Court of India

[Collegoum Statement]

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for elevation of the following persons as Judges in the Andhra Pradesh High Court:

ADVOCATE:

Dr K. Manmadha Rao

JUDICIAL OFFICER:

B.S. Bhanumathi

Supreme Court of India

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for the elevation of Shri Saurabh Kirpal, Advocate, as Judge in the Delhi High Court.

Supreme Court of India

[Collegium Statement]

 

Case BriefsHigh Courts

Patna High Court: Rajeev Ranjan Prasad, J., denied bail to the advocate booked for allegedly misappropriating his client’s money and committing breach of trust being an attorney. The Bench stated,

“Despite repeated caution made to learned counsel for the appellant that the appellant being an Advocate must come out with a fair stand even at this stage, there is no change of stand.”

The appellant was seeking to set aside the order of the Trial Court with regard to the offence under Sections 406, 420 of the Penal Code, 1860 and Sections 467, 468, 471, 120(B) of the Indian Penal Code and Section 3(r)(s) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, by which the prayer of the appellant for his release on bail had been rejected.

The appellant, who was an Advocate, had filed a case in the Railway Claims Tribunal on behalf of one Lalan Pasi for compensation under Section 125 and Section 16 of the Railway Act. The Tribunal allowed claim and directed the State to grant Rs. 8 Lakhs with interest at the rate of 9% to the claimant. Accordingly, a sum of Rs. 4 Lakhs was to be transferred in the account of Smt. Sanjhariya Devi (mother of the deceased). Accordingly, a joint account was opened and a sum of Rs. 10,52,000/- was transferred to the said account.

The case of the prosecution was that the appellant, taking advantage of his position as an Advocate of the victims/claimants withdrew the whole amount from the joint account of Lalan Pasi which was awarded as compensation to Lalan Pasi and Sanjhariya Devi on account of the death of their only son Gorakh Pasi.

Contesting the bail appeal, the State submitted that the act of the appellant robbing his client, being an Advocate was highly condemnable and the allegation against him were serious in nature when considered from the point of view of the professional ethics of an Advocate and the duty cast upon him towards his client.

Observing that, despite repeated caution to return the entire amount to the claimant, the appellant was reluctant to do so and was only willing to return a sum of Rs. 5 lakhs, the Bench stated that the appellant being an Advocate must come out with a fair stand.

In the light of the above, the Bench held that since the appellant being an Advocate had allegedly committed a breach of trust and had misappropriated his client’s money and was not ready to return the money which belonged to his clients, his case was not fit for bail.[Santosh Kumar Mishra v. State of Bihar, Cr. Appeal (Sj) No.3564 of 2021, decided on 27-10-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance:
For the Appellant/s: Mr.Ajit Kumar, Advocate
For the Respondent/s: Ms. Usha Kumari – 1, Special P.P.

Appointments & TransfersNews

President of India, in exercise of the power conferred by clause (l) of Article 217, Article 224 and Article 222 of the Constitution of India, after consultation with the Chief Justice of India, has made the following appointments/transfers:

No. Name (S/Shri) Name of High Court
1. Uma Shanker Vyas, Judicial Officer As Judge of the Rajasthan High Court.
2. Vikram D Chauhan, Advocate As an Additional Judge of the Allahabad High Court.
3. Shri Justice Joymalya Bagchi, Judge Transferred from Andhra Pradesh HC to Calcutta HC.

Ministry of Law and Justice

Notification dt. 25-10-2021]

Case BriefsHigh Courts

Delhi High Court: V. Kameswar Rao, J., refuses to grant relief to the claimant who urged to include 10 years of practice as an advocate for the purpose of calculating pension in addition to qualifying service as Judicial Member of Railway Claims Tribunal.

Petitioner submitted that he was enrolled as an Advocate with the Bar Council of Delhi and also cleared the exam for Advocates on Record and was duly enrolled on October 15, 1998.

In 2015 he was appointed to the post of Member (Judicial) Kolkata Bench of Railway Claims Tribunal (RCT). Then in 2016, he was transferred to the Secunderabad Bench of the RCT where he worked till January 19th. Thereafter, he was transferred to Gauhati Bench of the RCT where he worked till, he completed 5 five years’ tenure on April 21, 2020.

He stated that in terms of Section 5 of the Railway Claims Tribunal Act, 1987, which stipulated qualifications for appointment as Chairman, Vice-Chairman and other Members; a person shall not be qualified for appointment as a Judicial Member unless he is, or has been, or is qualified to be a Judge of a High Court.

According to the petitioner, in view of the above-said provision, he was selected for the post of Judicial Member RCT being found as qualified to be a Judge of a High Court and as per Article 217 of the Constitution of India, the qualifications needed for appointment to the post of a Judge of a High Court, was that one must have at least 10 years of practice as an Advocate.

Primary Claim:

Claim was with regard to counting of 10 years of practice as an Advocate for the purpose of calculating pension in addition to qualifying service of the petitioner as Judicial Member of the RCT, for pension.

Question of Consideration:

Whether the petitioner is entitled to the counting of 10 years of practice at the Bar, along with the qualifying period put in by him as Judicial Member in RCT?

Analysis, Law and Decision

High Court stated that the Supreme Court’s decision in Government of NCT of Delhi v. All India Young Lawyers Association, (2009) 14 SCC 49, was concerning the Officers of the DHJS, who were appointed to the service, being Advocates practicing at the Bar. Supreme Court while reducing the period from 15 years to 10 years did not interfere, with respect to the grant of benefit of counting of the period of practice put in by an Advocate.

Bench stated that joining the service between the ages of 35 to 45 years, a DHJS Officer puts in at least 15 years of service before demitting the office, which was not the case here, since the appointment of the petitioner was only for a period of 5 years and upon completion of 5 years, he demitted the office.

Therefore, his plea that he was qualified to be a High Court Judge, was appointed as Judicial Member and as such 10 years of practice at the Bar needed to be counted for the pension was unmerited, for the reason that the pension as a Member (Judicial) shall still be governed by the Rules of 1989.

Sr. Panel Counsel, Jagjit Singh during his submission had drawn the attention of the Court towards the Supreme Court decision in Madras Bar Assn. v. Union of India, WP (C) No. 804 of 2020, 27-11-2020 wherein the Supreme Court while considering the Tribunal Rules of 2020, which were notified on 12-02-2020, held Chairpersons, Vice-Chairpersons and Members of the Tribunals appointed prior to 12-02-2020 shall be governed by the parent Statutes and Rules as per which, they were appointed.

Therefore, since the petitioner was appointed prior to 12-2-2020, terms and conditions of appointment of the petitioner as Judicial Member RCT shall necessarily be governed under the Rules of 1989.

In view of the above petitioner was not entitled to any relief. [Ajit Kumar Pande v. Union of India, 2021 SCC OnLine Del 4590, decided on 4-10-2021]

Advocates before the Court:

For the Petitioner: In-person

For the Respondent: Jagjit Singh, Sr. Panel Counsel with Mr Preet Singh, Mr Vipin Chaudhary & Ms Rashmi Malhotra, Advs.

Appointments & TransfersNews

Elevation of an Advocate as Judge in Punjab and Haryana High Court

Supreme Court Collegium has approved the proposal for the elevation of Shri Sandeep Moudgil, Advocate, as Judge in the Punjab & Haryana High Court.

Supreme Court of India

[Collegium Statement dt. 29-9-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ. dismissed a writ petition filed by an advocate seeking to stall elevation of a judicial officer as a Judge of the Telangana High Court. The Supreme Court said that the petition was a gross abuse of the process of law and imposed costs of Rs 5 lakh on the petitioner.

The petitioner, B. Sailesh Saxena, is an advocate enrolled with the Bar Council of Telangana since the year 2000. He filed the instant petition seeking a writ of mandamus or an appropriate writ, order or direction directing the Union of India, State of Telangana and Registrar (Vigilance & Administration) of the Telangana High Court to consider his representation and take necessary action as per law. In effect, the petitioner stated that the recommendation of Venkateswara Reddy, Registrar General of the Telangana High Court should not be processed for elevation as a Judge of the High Court. The petitioner made various allegations against the Registrar General and other persons.

Proceedings before the High Court

The Supreme Court took notice of the writ petition filed by the petitioner before the Hyderabad High Court which was decided vide B. Sailesh Saxena v. Union of India, 2018 SCC OnLine Hyd 267. The Supreme Court discussed the ramifications of that judgment.

In that petition, the petitioner claimed that he was a legal advisor for the family of a Member of Parliament and legal counsel for other politically connected persons. He claimed to have suffered on account of political prejudices as the petitioner and his family members were being subjected to torture due to harassment by police authorities. The High Court had noted that there are various criminal complaints pending investigation against the petitioner himself. One such complaint was lodged by the Registrar General (whose elevation as a Judge the petitioner was now trying to stall) in his capacity as the then Registrar (Judicial), pursuant to a direction issued by the High Court. The allegation was that the petitioner had filed writ petitions on behalf of fictitious non-existent persons.

The case of the petitioner before the High Court was that multiple FIRs were being filed with a view to harass the petitioner, and the complaint registered at the instance of the Registrar pursuant to the direction of the Court would also fall in the same category. The High Court was of the opinion that the Registrar as a responsible officer only followed the direction passed by the High Court and, thus, what the petitioner attempted to do was to derail the course of investigation in the complaints lodged against him.

The instant writ petition

The Supreme Court said that it was surprised at the brazenness of the petitioner now filing a petition under Article 32 of the Constitution. It was observed:

“We are surprised as the brazenness of the petitioner now filing the present petition under Article 32 of the Constitution of India, the aforesaid being the finding against him, to now somehow see that the elevation of [the Registrar General] does not take place on the account of these proceedings initiated by the petitioner. This is gross abuse of process of law.”

Observing that there exist sufficient safeguards in the system for appointment of Judges to the High Court, the Supreme Court explained:

“The process of appointment of judges to the High Court is under a well known established process where the collegium of the High Court considers recommending the names and in case of judicial officers by seniority and on merits. Thereafter, the proposed IB inputs and other inputs are obtained and the Government processes the names. The collegium of the Supreme Court has the benefit of all the material before taking a call on whether to recommend the name or not. The appointment takes place thereafter by issuance of warrants of appointment. “

Conclusion

The Supreme Court considered the endeavour of the petitioner as one of harassing the Registrar General of the Telangana High Court and abusing the court proceedings. The Court was of the view that since nothing else seem to deter the petitioner in such endeavours, imposition of costs seems to be the only solution.

The Court dismissed the writ petition with costs of Rs 5 lakh to be deposited by the petitioner with the Supreme Court Advocates On Record Welfare Fund. Additionally, the Bar Council of Telangana was directed to examine the petitioner’s conduct as a member of the “noble profession”. [B. Sailesh Saxena v. Union of India, WP (Civil) No. 555 of 2020, decided on 3-9-2021]

Advocates before the Court:

For Petitioner(s):

V. Chidambresh, Sr. Adv.

Aakash Sirohi, AOR

Appointments & TransfersNews

Elevation of 1 Advocate and 1 Judicial Officer as Judges in Chhattisgarh HC

Supreme Court Collegium has approved the proposal for the elevation of the following persons as Judges in the Chhattisgarh High Court:

ADVOCATE:

1. Shri Sachin Singh Rajput, and

JUDICIAL OFFICER:

2. Shri Deepak Kumar Tiwari.

Collegium Resolution

[Statement dt. 1-09-2021]

Appointments & TransfersNews

Proposal for elevation of Advocate Purushaindra Kumar Kaurav as Judge of Madhya Pradesh HC approved

Supreme Court Collegium has approved the proposal for the elevation of Shri Purushaindra Kumar Kaurav, Advocate, as Judge in the Madhya Pradesh High Court.

Collegium Resolution

[Statement dt. 1-09-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench of R.F. Nariman and Hrishikesh Roy, JJ. directed that adverse comments recorded against the appellant─advocate in certain judgments of the Uttaranchal High Court be recalled. The Supreme Court found that the offending remarks were unnecessary for deciding the disputes and appeared to be based on personal perception of the Presiding Judge. The requisite degree of restraint and sobriety expected in such situations was also found missing in the offending remarks.

Facts and Appeal

The appellant was a practicing advocate before the Uttaranchal High Court with around 17 years of standing at the Bar. The focal point of the matter arose from four cases before the High Court in which the appellant represented one of the contesting parties. In those four cases, the Presiding Judge of the High Court made certain adverse observations/remarks against the appellant. A brief summary of High Court’s remarks in question is as follows:

Case 1. [1] Anguished over ‘suppression of material fact’ by the appellant, the High Court remarked: “The counsel for the petitioner is a seasonal (sic seasoned) advocate … he has deliberately created a wrong example for the pious institution.“

Case 2. [2] Disapproving appellant’s tactic of ‘wasting court’s time’, the High Court said: “.. the learned counsel for the plaintiff/appellant … was intentionally attempting to make a mountain of a mole, which .. was a brutal assassination of time … It further reflected that as if it was not an argument for the case but rather for the visitor’s gallery.“

Case 3. [3]  Noting the ‘unacceptable conduct’ of the appellant, the Presiding Judge observed: “… the learned counsel for the appellant submitted that in a prior proceeding which was held before this Court … since I had appeared as a counsel on behalf of the defendant/appellant herein, an attempt was made … to avoid to address of the Second Appeal on its merits before this Court.” (sic)

Case 4.[4] Expressing displeasure against appellant’s ‘modus operandi’ in placing voluminous record including irrelevant precedents/judgments running into volumes, at the stage of admission of the petition itself, the High Court, inter alia, remarked: “… the intention behind making reference to the judgment, was to mislead the Court and to buy time in prolonging the proceedings in order to overcome the effect of dismissal of the concurrent Writ Petitions in limine by placing voluminous judgments on record, and making references of them, by quoting excerpts.“

Aggrieved, the appellant approached the Supreme Court for expunging such offending remarks recorded by the High Court against him.

Contention

The appellant submitted that the offending comments were neither essential nor necessary for the High Court’s verdict in the cases concerned. In any case, those remarks were made without putting him to notice or providing any hearing. Further, such adverse comments will not only undermine the professional reputation of the appellant, but would also impact his standing and practice as a lawyer.

In addition, it was submitted that the comments may have emanated from personal prejudice and may not be otherwise warranted. It was stated that before his elevation to the Bench, the Presiding Judge concerned was a member of the same Bar as the appellant and both were rival counsel in several contested matters.

Analysis and Observations

The Supreme Court relied on a catena of judicial precedents on the subject, including State of U.P. v. Mohd. Naim, AIR 1964 SC 703, where Justice S.K. Das laid down three tests to be applied while dealing with the question of expunction of disparaging remarks:

(i) Whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself;

(ii) Whether there is evidence  on record bearing on that conduct justifying the remarks; and

(iii) Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.

Discussing the law laid down in earlier cases which has been consistently followed, the Court observed:

“While it is of fundamental importance in the realm of administration of justice to allow the judges to discharge their functions freely and fearlessly and without interference by anyone, it is equally important for the judges to be exercising restraint and avoid unnecessary remarks on the conduct of the counsel which may have no bearing on the adjudication of the dispute before the Court.“

Considering the adverse comments recorded in the High Court judgments, the Supreme Court was of the view that such remarks could have been avoided as they were unnecessary for deciding the disputes. Moreover, in Court’s opinion, they appeared to be “based on the personal perception of the learned Judge“.

It was apparent that the Judge did not give any opportunity to the appellant to put forth an explanation. The Court stated that the remarks so recorded have cast aspersion on professional integrity of the appellant. Such condemnation of the appellant without giving him an opportunity of being heard would be a negation of principles of audi alteram partem. The requisite degree of restraint and sobriety expected in such situations was also found missing in the offending comments.

Opining that to allow the appellant to suffer would be prejudicial and unjust, the Court said:

“The tenor of the remarks recorded against the appellant will not only demean him amongst his professional colleagues but may also adversely impact his professional career. If the comments remain unexpunged in the court judgments, it will be a cross that the appellant will have to bear, all his life.“

Decision

The Court concluded that the offending remarks recorded by the Presiding Judge of the High Court against the appellant should not have been recorded in the manner it was done. It was accordingly held that the offending remarks should be recalled to avoid any future harm to appellant’s reputation or his work as a member of the Bar. Order was made accordingly. [Neeraj Garg v. Sarita Rani, 2021 SCC OnLine SC 527, decided on 2-8-2021]

Tejaswi Pandit, Senior Editorial Assistant has reported this brief.   

[1] WP (M/S) No. 2216 of 2017 and WP (M/S) No. 2208 of 2017, dated 14-11-2017 (Uttaranchal High Court)

[2] SA No. 190/2019, dated 22-11-2019 (Uttaranchal High Court)

[3] SA 182 of 2019, dated 12-3-2020 (Uttaranchal High Court)

[4] WP (M/S) 519 of 2019, dated 22-2-2021 (Uttaranchal High Court)

Case BriefsHigh Courts

Allahabad High Court: Division Bench of Manoj Kumar Gupta and Syed Aftab Husain Rizvi, JJ.,  while addressing a matter declined to hear the same on noting that the petitioner’s counsel was addressing the Court while riding a scooter.

High Court remarked that,

He should be careful in future even if the hearing is to take place through video conferencing.

Matter to be put up as fresh on 12-07-2021. [Khusboo Devi v. State of U.P., 2021 SCC OnLine All 443, decided on 25-6-2021]

Advocates before the Court:

Counsel for Petitioner:- Amar Singh Kashyap Counsel for Respondent:- C.S.C.,C.S.C.

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for elevation of the following persons as Judges of the Chhattisgarh High Court:

ADVOCATE:

1. Shri Narendra Kumar Vyas, and

JUDICIAL OFFICER:

2. Shri Naresh Kumar Chandravanshi.

Supreme Court of India

[Statement dt. 04-02-2021]

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for elevation of the following persons as Judges of the Karnataka High Court:

ADVOCATE:

1. Shri Aditya Sondhi,

JUDICIAL OFFICERS:

2. Shri Rajendra Badamikar, and

3. Ms Khazi Jayabunnisa Mohiuddin.

Supreme Court of India

[Statement dt. 04-02-2021]

Case BriefsHigh Courts

Allahabad High Court: The Division bench of Govind Mathur, CJ and Saumitra Dayal Singh, J., directs the Chief Judicial Magistrate to submit a report after conducting an inquiry in regard to a matter wherein a Practicing Advocate was beaten and manhandled by the police at Etah.

The Bar Council of Uttar Pradesh addressed a letter to the Chief Justice of this Court with a request to take appropriate action in relation to an incident said to have taken place at Etah on 21-12-2020.

As per the averments contained in the letter, it was submitted that Rajendra Sharma, a practicing advocate at Etah was beaten and manhandled by the police along with humiliation and harassment to his relatives.  Secretariat of the Chief Justice from the High Court Bar Association also had sent a letter in regard to the same issue.

Bench in light of the above held that it would be appropriate to have a complete report of the said incident through Chief Judicial Magistrate, Etah.

Hence, Chief Judicial Magistrate, Etah shall make a necessary inquiry by availing all relevant facts including audiovisual electronic documents and submit to this Court.

District Magistrate, Etah as well as Senior Superintendent of Police, Etah have been directed to co-operate with the Chief Judicial Magistrate, Etah and they shall supply all relevant facts and documents as desired by the Chief Judicial Magistrate, Etah to furnish a report of the incident to this Court.

Matter to be listed on 08-01-2021.[Suo Moto Cognizance of The Police Atrocitities Over an Advocate, In Re., 2020 SCC OnLine All 1556, decided on 29-12-2020]

Case BriefsHigh Courts

Delhi High Court: C. Hari Shankar, J., after a wholesome discussion, rejected the idea of the constitution of a “two-tier” Confidentiality Club proposed by InterDigital Technology Corporation, and instead suggested the terms for constitution of a single-tier Confidentiality Club.

Factual Background

Xiaomi Corporation has been sued by Interdigital Technology Corporation alleging infringement of Indian Patents Nos 262910, 295912, 298719, 313036 and 320182.

Standard Essential Patents (SEPs)

Xiaomi has been using the technology contained in Standard Essential Patents (SEPs) without obtaining the license from Interdigital.

Hence in view of the above, Interdigital has sought a permanent injunction against Xiaomi from manufacturing, selling, assembling, distributing, advertising, exporting, importing or using, in their devices, technology which infringes the SEPs.

In the alternative, a direction has also been sought to XIAOMI, to take a license from Interdigital, for usage of its SEPs, on fair reasonable and non-discriminatory (FRAND) terms to be fixed by this Court.

InterDigital filed IA’s under Oder XXXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 and Chapter VII Rule 17 of the Delhi High Court (Original Side) Rule, 2018.

Chapter VII Rule 17 of the Original Side Rules reads thus:

“17. Confidentiality Club. – When parties to a commercial suit wish to rely on documents/information that are commercially or otherwise confidential in nature, the Court may constitute a Confidentiality Club so as to allow limited access to such documents/information. In doing so, the Court may set up a structure/protocol, for the establishment and functioning of such Club, as it may deem appropriate. An illustrative structure/protocol of the Confidentiality Club is provided in Annexure F. The Court may appropriately mould the structure/protocol of the Club, based upon the facts and circumstances of each case.”

Confidentiality Club Regime is standard protocol, especially while dealing with litigations involving allegation of patent infringement.

Bench in the instant case is concerned whether the Confidentiality Club could be set up in the manner sought by InterDigital.

What kind of Confidentiality Club does Interdigital seeks to be set up?

It seeks setting up of a “two-tier” Confidentiality Club, comprising an “outer tier” and an “inner tier”. The documents which would be open to the members of the “outer tier”, are denoted, in the application of InterDigital, as “Confidential Information”, whereas the documents, to which members of the “inner tier” alone would have access, had been denoted as “Legal Eyes Only (LEO) Confidential Information”.

Parties, as well as their officials and employees, would have no access to the “inner tier” documents.

Mr Parvin Anand has stated that the exclusion of representatives of the parties, from having access to the inner tier documents is non-negotiable.

Bench posed two queries to Mr Parvin Anand, which were as follows:

  • How an advocate could be expected to be appropriately instructed, if he is unable to share, with his clients, the material on which the OP seeks to rely?
  • How the Court could come between the advocate and his client, insofar as the “inner tier” documents were concerned, and injunct the advocate from disclosing the documents to his client?

Wouldn’t the above-stated amount to an unwelcome and unjustified, incursion by the Court into the sacred space that exists between the client and counsel?

Mr Anand submitted that no occasion would arise for the Court to come in between the client and counsel as, if this Court were to accede to the prayer, of InterDigital, for setting up of the “two-tier” Confidentiality Club, it would be for Xiaomi to instruct its Counsel not to disclose, to it, the “inner tier” documents.

Court was befuddled with the above response and expressed that it does not understand how the Court could insist on Xiaomi contracting with its counsel to keep documents shown to its counsel and on which InterDigital relies against Xiaomi, undisclosed to Xiaomi itself.

Hence, the Court held that it cannot by judicial fiat, impose any such contractual dispensation between Xiaomi and its Counsel.

Bench’s opinion on setting up of ‘Confidentiality Club’

Bench in very clear words opined that the mere fact that Courts, overseas, may have acquiesced to the setting up of such Confidentiality Clubs cannot be of any substantial significance, in deciding the present application of InterDigital.

Bench relied on the decision of this Court in M. Sivasamy v. Vestergaard Frandsen A/S, 2009 (113) DRJ 820 (DB), wherein the following was the Court’s observation:

“…with respect to the litigation in India, the Courts in this country would be guided by the provisions of the Laws as applicable in this country and the pleadings in the suit in this court and not by any orders or decisions of the foreign court, unless, the decision of the foreign Court becomes final and so that it can operate as res judicata between the parties and operate in the parameters of Section 13 and Section 44-A of the Code of Civil Procedure, 1908.

No useful purpose will be served in making reference to various orders of the Courts in the different countries as one does not know what are the ingredients/requirements of causes of action of the different laws of those countries and what were the pleadings of the cases in the foreign courts.”

Bench needs to decide on whether “comparable patent licence agreement” could be justifiably included in an ‘inner tier’ of confidential documents, to be kept away from the eyes of the defendant, as well as all its officers and employees?

Court denied the prayer for keeping certain documents, and information, inaccessible to Xiaomi and its personnel, and allow access, thereto, only to the advocates and experts nominated by Xiaomi.

Whether “two tier” Confidentiality Club legally palatable in the mind of the Court or not?

In case the Court finds the request, of InterDigital, for setting up of a “two-tier” Confidentiality Club, to be acceptable, the benefit thereof would, naturally, ensure to Xiaomi as well. The question, therefore, is not whether Xiaomi would also get the benefit of such an arrangement, but of whether such an arrangement is, to the mind of the Court, legally palatable or not.

No civil suit, be it for enforcement of rights relating to intellectual property, or any other right, can claim innocence to the rigour and discipline of the CPC and the Specific Relief Act, 1963.

Further, the Court observed:

Whether either of the parties, to litigation, needs, or does not need, to see a particular document, would be a decision which essentially rests with the party itself.

Can InterDigital, simply put, assert that Xiaomi does not need to see a document on which InterDigital places reliance, to contest the case initiated by it against Xiaomi?

For the above-stated Court’s opinion was in negative and bench relied on the observations in the decision of Transformative Learning Solutions v. Pawajot Kaur Baweja, 2019 SCC OnLine Del 9229, in paras 23 and 24.

Adding to its observations Court also stated that:

Patent infringement, in the case of SEPs, has, however, a unique feature. A holder of a SEP is not entitled, of right, to seek an injunction against infringement of its SEP, merely on making out a case of such infringement. This, essentially, means that every holder of a SEP is required, in law, to agree to the licensing of its SEP to willing licensees.

Court noted that the plaintiff desires to include the license agreements in the ‘inner tier’ to be kept away from the eyes of the defendants as well as all their officers and employees.

Bench found the above suggestion to be completely antithetical to, and destructive of, the most fundamental notions of natural justice and fair play.

Court again stressed upon the fact that while penning this judgment, it is only addressing the prayer of InterDigital, for the constitution of a two-tier Confidentiality Club, consisting of “inner tier” and “outer tier” documents.

In line of the above position, Court remarked:

Permitting the constitution of such a Club would amount to granting blanket permission, to InterDigital, to keep certain documents away from Xiaomi, its officers and its employees.

Adding to the above, Court also stated that in case the parties are able to agree and arrive at a level playing field, then this judgment shall not come in the way of their doing so.

As the Bench is only concerned with the issue of whether such an arrangement as being discussed can, against its wishes be imposed on Xiaomi.

Court further dealt with the Annexure-F to the Original Side Rules which is cited as “an illustrative structure/protocol of the Confidentiality Club” which may be “appropriately moulded” by the Court.

Membership of the Confidentiality Club, constituted in the manner envisaged by Annexure F is, clearly, limited to three advocates and not more than two external experts. Mr Anand submitted, relying on this Annexure, that the parties, and their officials and representatives, may legitimately be excluded from the Confidentiality Club constituted by the Court.

Bench asserted that, if InterDigital can come to terms with Xiaomi, and they agree, ad idem, to the constitution of such a Confidentiality Club, in which “inner tier” documents would remain away from the prying eyes of InterDigital and Xiaomi, as well as their officers and employees, this order shall not stand in their way. As of today, however, Xiaomi is not agreeable to such an arrangement.

Client-Lawyer Relationship 

Further, stating that the client-lawyer relationship in Indian Law, has its own distinct incidents, Bench relied on the Supreme Court decision in Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373.

Supreme Court in its’ decision of An Advocate v. B.B. Haradara, 1989 (1) ARC 72 (SC) and Om Prakash v. Suresh Kumar, 2020 SCC OnLine SC 100, iterated that the duty of advocates to act, at all times, under instructions from their clients.

SEP infringement litigation cannot be treated as a category sui generis, to which the principles enunciated in these decisions, as well as the Bar Council of India Rules, would not apply.

Court cannot trust such arrangements discussed above upon Xiaomi, without its consent, in the absence of any clear right having been established by InterDigital, for the imposition, on Xiaomi, of such an arrangement.

During the course of the hearing, the thought came to the Court several times that – What if XIAOMI is unwilling — as it is, in the present case – for the 3rd party license agreements, on which InterDigital relies, to be shown only to its advocates and experts, and not its own officials of personnel?

What if Xiaomi says that it is not willing to contract, with its counsel, to keep undisclosed, from Xiaomi, the documents which have been shown to him?

To the above, Mr Pravin Anand submitted that, having involved Xiaomi in a litigative exercise, by filing the present suit against it, InterDigital can insist on Xiaomi prosecuting the suit, and defending itself against InterDigital, without being shown the documents on which InterDigital proposes to rely.

Bench on hearing the above submission summarily rejected it.

Further, in Court’s view, there can be no question of this Court lending its approval to any arrangement in which the third-party license agreements, constituting the very basis of the case set up by InterDigital against Xiaomi, remain undisclosed to Xiaomi, as well as its officials and personnel and are shown only to advocates (who are not in-house counsel) and experts. Any such arrangement would violate the provisions of the Bar Council Rules as well as the law laid down in various decisions including, inter alia, Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373.

No setting up of a “two-tier” Confidentiality Club

While concluding its decision, Court held that there is substance in Mr Pravin Anand’s submission that InterDigital cannot, very well, disclose details, in third-party license agreements which, as agreed between InterDigital and such third parties, are required to remain confidential. At the same time, InterDigital cannot, rely on such material against Xiaomi, holding the material back from the representatives of Xiaomi on the plea of confidentiality. InterDigital is, therefore, at liberty to redact, from the documents being treated as confidential, any such detail which, according to it, cannot be disclosed to any third party, including the representatives of Xiaomi.

Though if, Xiaomi agrees to the constitution of such a Club, then this Order would not stand in its way.

Bench held that instead of a “two-tier” Confidentiality club, a single-tier Confidentiality Club can be constituted in the following terms:

(i) Each party shall nominate four advocates, six representatives and two experts, who would constitute the confidentiality club.

(ii) The members of the confidentiality club alone shall be entitled to inspect the confidential information. In the case of the advocates and experts, such inspection would be to the extent such inspection is required in order to perform their professional duties in relation to the present proceedings on behalf of the party by whom they are engaged.

 (iii) The documents, regarded as “confidential information” would be filed in sealed cover, to be retained with the Registrar General of this Court under seal and in safe custody.

(iv) The members of the confidentiality club shall be entitled to inspect the confidential information before the Registrar General and, after the inspection is over, the documents and information shall be resealed and returned to the Registrar General.

 (v) The members of the confidentiality club shall be bound by confidentiality orders passed by this Court and will not be allowed to make copies, disclose or publish the contents of the confidential information or documents anywhere else or to any individuals who are not privy to the confidential information, including in other legal proceedings or oral and written communications to the press, etc.

(vi) During the recording of evidence and other proceedings of this Court with respect to the confidential information, or when the confidential information is being looked at, only members of the confidentiality club shall be allowed to remain present. Such proceedings will be conducted in camera.

  (vii) Any evidence, by way of affidavit or witness statement, containing confidential information shall also be kept in a sealed cover reflecting the confidential and designation, with the learned Registrar General, and would be accessible only to the members of the confidentiality club.

(viii) Neither party would be permitted to rely on any material which is not disclosed to the nominated representatives (as opposed to advocates and experts) of the opposite party. Should either party feel that any details, contained in any document, cannot be shown to the nominated representatives of the opposite party, it is at liberty to redact such details or particulars from the document(s) in question. Needless to say, the party that redacts any particular is, in any document or evidence, shall not be permitted to rely on such a redacted particulars. It shall, however, be open to the opposite party to plead that disclosure of such redacted material is necessary for its defence. In such a case, the court would decide, on a document-to-document basis, whether redacting of the “confidential” details, in the document, should, or should not, be allowed. This, in Court’s opinion, is the maximum extent to which the plea, of InterDigital, for keeping away, from the representatives of Xiaomi, “confidential” details and documents, can be accommodated.

(ix) The confidential documents/information shall not be available for inspection after disposal of the matter, except to the parties producing the same.

Hence, the application stands disposed of in the above terms. [Interdigital Technology Corpn. v. Xiaomi Corpn., 2020 SCC OnLine Del 1633, decided on 16-12-2020]

Advocates for the parties:

For the plaintiffs: Pravin Anand, Vaishali Mittal, Siddhant Chamola and . Pallavi Bhatnagar, Advocates.

For the Defendants: Saikrishna Rajagopal, Siddharth Chopra, Sneha Jain, Garima Sahney, Anu Paarcha, Dr Victor Vaibhav Tandon, Arjun Gadhoke and Charu Grover, Advocates.

Case BriefsHigh Courts

Madras High Court: G.K. Ilathiraiyan, J., addressed a petition wherein it was reiterated that Advocates are barred from having any business transaction or loan transaction with his client as the same amounts to professional misconduct.

Purpose of filing the present petition was to quash the proceedings taken place by the Judicial Magistrate for the offences punishable under Section 138 Negotiable Instruments Act against the petitioner.

Respondent who is an advocate appeared on behalf of the petitioner in a case cheated him along to the tune of Rs 7 lakhs and also misused the cheque issued by the petitioner and filed a false case against him.

Contentions

Lack of Jurisdiction

The alleged cheque was presented for collection before the Indian Bank, Madras High Court Branch whereas the complaint was lodged before the Judicial Magistrate, without any jurisdiction.

Hence, the complaint was liable to be quashed for lack of jurisdiction.

Further, the petitioner also relied upon the decision of Bridgestone India (P) Ltd. v. Inderpal Singh, (2016) 2 SCC 75.

Default in Notice

Another point raised by the petitioner was that the statutory notice by the respondent did not fulfil the procedures laid down under Section 138 NI Act and 15 days time is to be given for repayment under the provisions of NI Act which has not been given to the petitioner.

Fiduciary Relationship

Respondent misused the fiduciary relationship with his client and the continuation of the above complaint is harassment to the petitioner for choosing such a person for defending his case.

As per Rule 49(1) C of the Advocates Act, the Advocate is barred from having any business transaction or loan transaction with his client. Therefore the entire complaint is liable to be quashed.

Counsel for the petitioner, A. Edwin and Counsel R. Krishnakumar for the respondent.

Analysis and Decision

Complainant’s case is that the petitioner had borrowed a sum of Rs 24 lakhs for the development of his business and for personal expenditure. He also assured that he would pay interest on the borrowed amount. Thereafter in order to repay the part of the amount, he issued a cheque of Rs 9,45,000 and the same was presented for collection but the same was returned for the reason that “Exceeds Arrangement”.

Section 138 (c) of NI Act:

The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Respondent issued a notice asking the petitioner to repay the cheque amount within a period of 7 days, whereas according to the above-stated Section, the notice period should have been 15 days.

Relying on the Supreme Court’s decision in B. Sunitha v. State of Telangana, (2018) 1 SCC 638, Bench held that when there is a specific bar for doing money lending business that too with his own client, the act of the respondents will amount to professional misconduct.

Hence the entire proceedings initiated against the petitioner is nothing but clear abuse of process of law.

Further, the Supreme Court decision in  Bridgestone India (P) Ltd. v. Inderpal Singh, (2016) 2 SCC 75, held that the place where the cheque is delivered for collection i.e., the branch of the payee or holder in due course, where the drawee maintains an account, would be determinative of the place of territorial jurisdiction.

Hence, in the instant case respondent ought to have filed the complaint within the jurisdiction of Indian Bank, High Court Branch. Therefore, the complaint cannot be sustained against the petitioner. [Ilakkia Raja v. T. Umamaheswaran, Crl. OP No. 1157 of 2020, decided on 29-07-2020]

Case BriefsHigh Courts

Madras High Court: G.K. Ilathiraiyan, J., observed that, Section 500 of the Penal Code, 1860 cannot be attracted wherein an advocate acts professionally on the instructions of his or her client.

The reason for present criminal original petitions was to quash the proceedings of Metropolitan Magistrate having been taken cognizance for the offences under Sections 500, 192 read with 34 of the Penal Code, 1860.

Five accused persons are there in the present petition, in which the petitioners are arrayed as A1 to A5. The second accused is an Advocate who appeared on behalf of other accused persons.

A1 to A5 are members of the Committee of Creditors. Respondent was initially appointed as the Insolvency Resolution Professional of Oceanic Edibles International Limited which is undergoing Corporate Insolvency Resolution Process by the National Company Law Tribunal, Chennai.

In light of several allegations against the respondent, accused persons filed an application seeking appointment of another Resolution Professional, after which the respondent was removed and another person was appointed as Resolution Professional.

Respondent stated that petitioners made statements which were defamatory in nature resulting in defaming his reputation.

Statements like:

a) Resolution Professional “is not up to the expected standard” (para 21)

b) “He is only keen on entering into the brawl with everyone, thus undermining the judicial process, if he is allowed to continue the interest of COC will be jeopardized”(para 21)

c) COC had already lost precious 50 days from the date of his appointment, no effective business has been conducted to evolve the resolution process in a forward-moving directions (para 22)

d) Resolution professional has misrepresented to media violating the code of conduct (para 23)

e) seeking amendments in IBC is beyond the Rps scope(para 18)

f) resolution professional again sent mails to the top executives wherein he had made statements to the top executives in a very unethical manner and uncalled for (para 19)

Petitioner Counsel submitted that the petitioners were members of COC vested with statutory powers under the IBC to replace the Resolution Professional in the manner provided under IBC. Accordingly, they instructed their counsel namely the second accused to filed an application before the NCLT.

In view of the above, Court stated that it would not attract offence under Section 499 IPC.

Section 499 IPC:

Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Bench stated that the statements of the petitioners do not attract Section 499 of IPC. A2 was an advocate for other accused persons and filed an application on the instruction of COC before the NCLT to remove the respondent.

Petitioners Counsel relied on the decision in Ayeasha Bi v. Peerkhan Sahib,1953 SCC OnLine Mad 3, wherein it was held that,

“…a lawyer is an advocate, one who speaks for another.Naturally beyond what his client tells him the lawyer has no opportunity to test the truth or falsity of the story put forward by the client.”

Kerala High Court in K. Daniel v. T. Hymavathy Amma, 1985 SCC OnLine Ker 110, held that the English Courts have reiterated the view during last four hundred years that the statements made by Judges, Juries, counsel, parties and witnesses in the course of judicial proceedings are not actionable in civil law for defamation as the occasion is absolutely privileged. 

Supreme Court along with various High Courts repeatedly held that,

an advocate who acted professionally as per the instruction of his or her client cannot be made criminally liable for offence of defamation under Section 500 unless contrary is alleged and established.

Hence, the Court allowed the criminal original petitions and the entire proceedings on the file of the Metropolitan Magistrate Court, Chennai. [M.L. Ganesh v. CA V. Venkata Siva Kumar, 2020 SCC OnLine Mad 2732, decided on 30-09-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal (CAT): A Division Bench of Justice L. Narasimha Reddy (Chairman) and A.K. Bishnoi (Administrative Member) took Suo Motu cognizance of the behaviour of an Advocate who made attempts to hoodwink the tribunal.

Background

Sanjiv Chaturvedi an IFS officer of Uttarakhand Cadre was on deputation to the All India Institute of Medical Sciences (AIIMS) Delhi for some period who filed different Applications with regard to recording of ACRs and was represented by Mehmood Paracha, Advocate.

On completion of his deputation, he was repatriated to his parent cadre.

Advocate stated that the Supreme Court dismissed the SLP filed by the AIIMS, by imposing the cost of Rs 25,000. He was also informed that the adjudication before the Uttarakhand High Court and the Supreme Court was only about the power of the Chairman under Section 25 of the Administrative Tribunals Act, 1985 to stay the proceedings while dealing with an application for transfer and that issue no longer subsists, with the adjudication by the Courts.

Sanjiv Chaturvedi was flamboyant in his approach and was in fact exhibiting triumphalism in getting the order of stay passed in the transfer petition, set aside.

Adjournment | Contempt of Court

Further, the applicant i.e. Sanjiv Chaturvedi was also informed that he can argue the PTs themselves so that the issue can be given a quietus. That did not appeal to him and he went on almost browbeating the Chairman and trying to explain as to how the Tribunal should function.

At that stage, he was informed that his conduct before the Tribunal touched the border of the Contempt of Court and it is for him to choose the course of action. Thereupon, he sought adjournment.

Counsel for the respondent, Mehmood Pracha, stated that the Supreme Court dismissed the SLP filed by the AIIMS. Taking note of the said fact, he was asked to proceed with the PTs and advance the arguments which did not appeal to him.

Humiliation

Instead, Counsel Mehmood Parcha who is the respondent in the present matter, started humiliating the other side’s counsel saying that the Supreme Court has shown them their place by the imposition of Rs 25,000 costs and hence they have no right to plead before the Tribunal.

Browbeating the Chairman | Personal attack on Chairman

He created an unfortunate situation in the Court and was browbeating the Chairman through his gestures and dramatics. Seeing that his provocation was not yielding the expected results, Advocate went on to make a personal attack on the Chairman.

Further, he went on to say that he has a lot to be said about the Chairman and the proceedings should be held in camera.

Scandalising the Chairman

He was informed that he can say in the open Court whatever he intends and if that is not done, it would amount to scandalizing the Chairman. His behaviour continued in the same manner and he did not reveal anything.

The Court was full of Advocates of different standings and repeated requests were made by them to pacify the respondent but nothing affected him.

Section 25 of the Administrative Tribunals Act

It was also informed that the PTs are heard only the Chairman under Section 25 of the Act and if he i.e. the Advocate has any other suggestion, he could make it.

Yet, he continued his tirade.

In view of the above occurrence, Advocate was sent a notice requiring him to explain as to why contempt proceedings should not be initiated against him.

Delhi High Court took up the matter of contempt and referring to the Supreme Court decision in T. Sudhakar Prasad v. Government of Andhra Pradesh (2001) 1 SCC 516, and held that the tribunal alone has jurisdiction to hear and decide the contempt case.

The Supreme Court affirmed order in the contempt matter by rejecting SLP (Crl) No. 7850 of 2019 after the draft charge as provided by the Contempt of Courts (CAT) Rules, 1992 were framed on 19-07-2019 on the basis of the remarks and statements made by the respondent herein, in his capacity as an Advocate.

The respondent filed MA. No. 2471/2019 with three prayers viz., (i) to decide certain MAs filed in PT. No. 288/2017; (ii) to decide whether the Chairman has jurisdiction to hear the contempt case; and (iii) to pass orders in respect of draft charge dated 19-07-2019. The MAs were disposed of on 02-08-2019.

Vikramjit Banerjee, Additional Solicitor General appeared to assist the Tribunal.

Decision

Tribunal expressed that the matter falls under Rule 13(b) of the Contempt of Courts (CAT) Rules, 1992.

Criminal Contempt

Solicitor General, Vikramjit Banerjee, stated that even where an Advocate becomes emotional, during the course of hearing, there is a method of setting the things right and persistent behaviour of challenging the very authority of the Tribunal or attempting to denigrate the Chairman would clearly amount to criminal contempt.

To the suggestion made by the learned Additional Solicitor General that the matter can be given a quietus in case the respondent expresses regrets, the latter stated that he will stand by whatever he said in the Tribunal and during the course of proceedings and that there is no question of expressing regrets.

It is not uncommon that a party or his counsel whose view point is not being accepted by the Court gets agitated. Howsoever strong such feeling may be, they have to stop at a particular stage, even while making effort to drive home, their point.

Upholding the dignity of the Institution

Attacking an adjudicator or attributing motives would cut at the very root of the system.

Once the dignity and status of the Institution are compromised, it loses its relevance. The concept of Contempt of Court is evolved inter alia to protect the dignity of the Institution.

Further, the bench stated that in all respects, result in the PTs was poised in favour of the applicant himself. However, what is discerned from the beginning is that his effort was to exhibit the IFS Officer’s personality than to get the relief in accordance with the law.

Tone & Tenor of pleas

The tone and tenor of the pleas are such that the target was certainly highly placed officers and authorities. In an application for transfer, all the above-stated was totally irrelevant.

The matter reached its pinnacle when in the Open Court counsel said that the proceedings be heard in the Chamber because he has to say something about the Chairman.

Though when he was asked to say whatever he wanted to in the Open Court, he went beating around the bush and did not spell out anything.

Hoodwinked the Tribunal

Counsel and his client have hoodwinked the Tribunal at every stage and in all possible manners.

Soon after the contempt notice was issued, a contempt case was filed against the Chairman, in the Uttarakhand High Court. A Single Judge bench entertaining it issued notice. The Supreme Court stayed it.

Tribunal noted that, the attempt in the present case made to add to the personality of the applicant and his counsel and for that purpose, Tribunal became an easy target.

Further, the bench stated that it may take decades of dedicated service for an officer to be recognised for his efficiency or honesty.

For a hardworking Advocate, it would take quite some time to get recognition or fame. Unfortunately, recourse is taken by some, to short cuts, without realising that the one who prefers short cuts is bound to be cut short.The only unfortunate part of it is that severe damage is done to the Institutions, in the meanwhile

In view of the above, the tribunal held the counsel i.e. respondent herein to be guilty of Contempt of Court under Section 14 of the Contempt of Court Act, 1971.

However, there would have been every justification for the tribunal, to impose the sentence, proportionate to the acts of contempt held proved against the respondent.

However, by treating this as a first instance, he has been let off with a severe warning to the effect that if he repeats such acts in future in the Tribunal, the finding that he is guilty of Contempt of Court, in this case, shall be treated as one of the factors in the proceedings, if any, that may ensue. [Tribunal on its own motion v. Mehmood Pracha, Cr. CP No. 290 of 2019, decided on 23-09-2020]