Case BriefsHigh Courts

Madras High Court: Observing that, Litigants are compelled to accept the wrong orders in view of inaccessibility to New Delhi and the exorbitant expenses towards engaging a counsel, the Division Bench of N. Kirubakaran and R. Pongiappan, JJ., emphasized that,

When approaching the Supreme Court by a common man remains in dreams only, it would amount to denying justice.

Court’s opinion

While trying to support its opinion, the High Court considered whether Members of Parliament will travel to Delhi to attend Parliament by spending their own money without sponsorship by the Government? Answering that no Member of Parliament would spend his own money to attend Parliament, the Court said that when such is the position regarding the elected members of Parliament, no one could expect an ordinary litigant to travel to New Delhi spending huge amount to file Appeals against the orders of the High Courts or Tribunals.

Elaborating the above, Bench stated that the location of Courts and Tribunals in New Delhi alone, without having Regional Benches, causes injustice to the people living in far-flung places away from New Delhi.

It is very unfortunate that majority of the litigants are compelled to accept unfavorable orders, for lack of resources and access to Appellate Courts.

 Background

Present matter revolved around a complaint wherein it was stated that the petitioner was unable to travel to New Delhi, as the appeal against order passed by the Bar Council of Tamil Nadu and Puducherry had to be filed before the Bar Council of India, which was located 2186 kilometres from Chennai and he would submit that keeping the Courts and Tribunals only in New Delhi would amount to denial of justice to majority of people living far away from New Delhi.

Petitioner challenged the dismissal of his complaint by the Disciplinary Committee of the Bar Council of Tamil Nadu filed by him against the second respondent, who was engaged by the petitioner to act as his Advocate, for professional misconduct.

Second respondent was engaged in conducting the Rent Control Proceedings by the Petitioner’s brother. During the course of the Trial only, it came to the notice of the petitioner that second respondent collected the rents and issued receipts based on the alleged oral instructions of the petitioner’s brother. Therefore, the petition was dismissed.

The findings given by the First Respondent was that the Petitioner’s brother, was not examined and it was fatal to the case of the petitioner. Moreover, the complainant alone had to prove and establish through evidence, the professional misconduct committed by the Second Respondent.

By giving such a finding, the Complaint was dismissed. If the Petitioner intends to prove that there was professional misconduct on the part of the Second Respondent, as rightly pointed out by the Disciplinary Committee, the Petitioner’s brother should have been examined who alone competent to speak about the transactions. Merely because the Petitioner’s brother adduced evidence before the Rent Control proceedings are not enough especially when serious allegations of misconduct are alleged against the Second Respondent.

Analysis, Law and Decision

In High Court’s opinion, the first respondent rightly dismissed the petition.

With regard to petitioner’s submission that alternate remedy of filing an appeal under Section 37 of the Advocate Act before the Bar Council of India is not efficacious as the Bar Council of India was located more than 2000 kilometres away, and if one intends to challenge the first respondent’s order, he will have to travel to New Delhi and engage a counsel by spending lakhs of rupees.

Bench stated that Advocates in Delhi are charging very heavily than the State Counsel. Moreover, the petitioner will have to travel and for that also he will have to spend money.

Because of the above reasons, litigants though having a good case, are unable to challenge the same before the Supreme Court or before the Tribunals which are located in New Delhi.

“…many litigants accept the order passed by the Tribunals or the Bar Council or High Courts, in spite of the fact that they have a good case or an arguable case on merits.”

“Litigants are compelled to accept the wrong orders in view of inaccessibility to New Delhi and the exorbitant expenses towards engaging a counsel.”

The above would amount to infraction of Article 21 guaranteed to a citizen as the existence of remedy should be reasonably practicable and access being one of the essential requirements, ought to be provided, as otherwise, it would be a distant dream.

High Court held that the availability of alternate remedy under Section 37 of the Advocates Act is not efficacious, hence the writ petition was maintainable.

Bench noted that because of a decision on the administrative side of the Supreme Court, the efforts taken by the Centre to set up Benches in different parts of the country had been made futile.

No impression should be given that the Supreme Court is meant only for the people living in and around New Delhi or the States surrounding New Delhi.

Further, the Court stated that when the Supreme Court is inclined to grant permission to establish Benches of the High Courts, every citizen expects the same decision to establish Benches of the Supreme Courts in the South, North, East and West.

The Constitution framers thought of establishing Benches of the Supreme Court at various places, other the incorporation of below stated Article 130 would not have taken place.

Article 130 of the Constitution speaks about the seat of the Supreme Court, which is extracted as follows:-

“130. Seat of Supreme Court.- The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.”

Adding to the above, Bench observed that there was no constitutional bar for setting up or establishing Benches in various parts other than New Delhi.

Supreme Court is the custodian of rights of not only the litigants but also the entire population. Time has come to establish Benches of Supreme Court at other places apart from New Delhi.

When people are aware of their rights, they should have accessibility and affordability to reach every level of hierarchy of Courts.

High Court added that larger issue pertaining to access to Justice was discussed at length in the case of V. Vasanthakumar v. H.C. Bhatia, (2016) 7 SCC 686, wherein the Court referred the matter to a Constitution Bench on a range of issues, such as inter-alia whether to establish a National Court of Appeal or Regional Benches of the Supreme Court, etc.

The Court, which originally used to sit en banc, rendering seminal Constitutional bench Judgements, has now, owing to the prevalent system of admissions under Article 136 become a regular court of appeal, hearing all kinds of matters on a variety of Jurisdictions. 

For the above-stated matters, Bench expects the Central Government to take some action.

Adding to the observations, Court also stated that

India is having a population of 136 Crores, 34 Supreme Court Judges are not enough and more number of Judges are to be appointed. Hence, this Court hopes and expects that justice would be rendered by all the stake holders by taking a pragmatic, appropriate, justifiable and a fair decision in the interest of the people.

Lastly, disposing the petition, Court granted two week’s time to file an appeal if he wishes so, before the Bar Council of India.

Opinion of R. Pongiappan, J.

I have gone through the judgment and I am of the view that the views and observations given in paragraph Nos.3, 4 and 19 to 32 in the judgment are not related to the prayer sought for in the writ petition. Hence, with great respect, I am unable to persuade myself to subscribe views taken by my esteemed Brother. Accordingly, except approving the decision in negativing the writ petition, I am not agreeing with the views and observations made in the above referred paragraphs of this judgment.

[Karthik Ranganathan v. Disciplinary Committee-IV, WP No. 13796 of 2021, decided on 19-08-2021]


Advocates before the Court:

For Petitioner: Karthik Ranganathan (Petitioner-in-Person)

For Respondents: C.K. Chandrasekkar (For R1)

Rajesh Vivekanandan (For R3 & R4)

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 BriefsSupreme Court

Supreme Court: Explaining the scope misconduct by employees, the bench of RK Agrawal and AM Sapre, JJ said that there is no defense available to a delinquent to say that there was no loss or profit resulting in a case when officer/employee is found to have acted without authority.

The Court was hearing the case where the appellant, an assistant with LIC, was suspended for his alleged misconduct as he had, in discharge of his duties, issued as many as seven receipts including special premium receipts to the policyholders without receiving any premium amount from them. The appellant, in substance, admitted the issuance of receipts by him and also admitted non-receipt of the amount against any of these receipts from any of the policyholders. He, however, contended that such mistake occurred on his part due to heavy pressure of workload on him and some family circumstances/worries that were troubling him during those days.

Rejecting the contention of the appellant, the Court said that an employee, in discharge of his duties, is required to exercise higher standard of honesty and integrity. In a case where he deals with the money of the depositors and customers, it is all the more necessary for him to be more cautious in his duties because he deals with the money transactions for and on behalf of his employer.

It was further held that every such employee/officer is, therefore, required to take all possible steps to protect the interest of his employer. He must, therefore, discharge his duties with utmost sense of integrity, honesty, devotion and diligence and must ensure that he does nothing, which is unbecoming of an employee/officer. Any dereliction in discharge of duties whether by way of negligence or with deliberate intention or with casualness constitutes misconduct on the part of such employee/officer. [Mihir Kumar Hazara v. Life Insurance Corporation, 2017 SCC OnLine SC 1068, decided on 11.09.2017]