This is a case relating to professional misconduct by the advocate. Professional conduct is that kind of manner which is outside the bounds of what is considered acceptable or worthy of its membership by the governing body of a profession. Professional misconduct may be defined as dishonourable conduct not befitting an advocate. In this case, the petitioner is R.D. Saxena whereas the respondent is Balram Prasad Sharma. The final ruling of the Case was given Justice K.T. Thomas on 20th August, 2000, by the hon'ble Supreme Court of India.

Facts Of The Case
In this case, the appellant R.D. Saxena is now in his septuagenarian[1] rehearsing as an advocate in the courts of Bhopal, Madhya Pradesh. He registered himself with the Bar Council of Madhya Pradesh. Initially, petitioner was appointed as a counsellor and represented the Madhya Pradesh State Co-operative Bank Ltd. (referred to as the Bank) in a case in 1990. On July 17, 1993, the petitioner was terminated by the respondent which was a Bank and asked the petitioner to return all the Case files of the Bank. Mr. Saxena refused to submit the bundle of case files held by him.

He stated that he had sent a merged bill which includes all type of renumeration to be given to him by the Bank, indicating the leftover balance of Rs. Nine Thousand seven hundred as legal remuneration owed to him. He informed the court that the case files shall only be returned when the respondent, the Bank has settled all the dues pending.

Since Mr. Saxena had not returned the files to the respondent (Bank), the Managing Director (M.D.) of the Bank filed a plaint against petitioner before the Madhya Pradesh Bar Council on 03 February, 1994, alleging that the appellant was blameworthy of professional misconduct. The Bank was growing increasingly apprehensive to recover the case files, as there were pending proceedings before the tribunal.

Inference of Madhya Pradesh bar council
In response to the complaint filed by the Bank's M.D., he asserted that the files have not been returned to the Bank. Furthermore, he claimed that he had the right to retain the Bank's files as compensation for the service he provided.

Disciplinary committee
The Plaint was subsequently referred to the council of discipline of the Madhya Pradesh Bar Council. The committee failed to relinquish the plaint within the stipulated time of 1 year. Committee conducted inquiry and, based on the complaint and available documents, reached a conclusion in the disputed order that the appellant had engaged in professional misconduct and should be held accountable for it.

Since the Bank was a social institution, it was the responsibility of the Mr. R.D. Saxena to give back the Case files to the Bank and to be present before the committee in order to address the accusations made in the application dated 8th November,1995. Regrettably, the appellant did not make any attempt to fulfill these obligations.

Since no action was taken by the disciplinary committee of Madhya Pradesh, the proceeding was then handed over to the BCI under section 36-B[2] of Advocates Act.

Bar council of India (BCI)
Appellant argued that the BCI failed to consider a crucial defense presented by the appellant, which asserted his right to retain the files as a lien for unpaid fees owed to him. According to the appellant, it led to the miscarriage of justice. On other hand, the respondent argued that no outstanding amount owed to the appellant, and the requested sum was merely an attempt to inflate his fees. Additionally, the Bank argued that a pleader cannot keep the client's files after termination, and no lien exists on such files.

The BCI without determining if the advocate had the right to claim a lien on the entrusted papers as his fees, imposed a punishment. The punishment involved disentitlement for 18 months, which included a fine of Rs. 10,000. Furthermore, the Bar Council ordered the appellant promptly return all the Case files to the client.

In response to this decision, an appeal was made to the Hon'ble SC of India under Section 38 of the Advocates Act[3].

Issue Raised In The Case
It is within the jurisdiction of an advocate to hold onto the documents entrusted to him by the client in place of the services rendered by him under section 171 of the Indian Contact Act[4]?

Legal Provisions Involved
Provisions of the Advocates Act, 1961 are as follows:

1. Section 36-B[5] stipulates that the council of discipline of the State Bar Council must promptly address complaints under Section 35[6] and conclude proceedings within one year. Failure to meet this deadline results in transfer of the Case to the BCI. The disciplinary proceedings which are going on must be resolved within six months or transferred to the Bar Council of India.
    
2. Section 38[7] states that any person who is not satisfied with the decision of the disciplinary committee may pray to the Hon'ble SC within 60 days as and when the committee's decree is communicated.

Provisions of Indian Contract Act, 1872 are as follows:

1. Section 171[8] clarifies that files comprising imitation of records, including primary documents, cannot be considered as "goods" mentioned in the section. Therefore, a pleader holding the files not to be treated as holding "bailed goods."
2. Section 148[9] defines the term bailment as an act of transferring goods from one person to another, accompanied by a contractual agreement specifying their return or appropriate disposal as per the delivering party's instructions. However, in the Case of litigation papers held by an advocate, there is neither a physical delivery of goods nor a contractual obligation for their return or disposal.
3. The term "goods" defined in Section 171[10] is to be recognized in the same manner as is defined under the Sale of Goods Act 1930.
4. Chapter 7 of the Act, from Section 76 to 123, has been swapped by the Sale of Goods Act 1930.

Provisions of the Sale of Goods Act, 1930:
Section 2(7)[11] defines "goods" as anything movable, including things forming part of or attached to the land, but excludes actionable claims and money.

Provisions of the Bar Council of India:
Rule 28: Once the proceedings cease, the advocate has the discretion to allocate any remaining unutilized funds received for expenses or any other amount obtained during the proceedings towards the settled fee owed to them.[12]

Rule 29: In Cases where fees are outstanding, the advocate is authorized to deduct the appropriate fee from the client's remaining funds, as determined by current court rules or any previously agreed-upon fee, upon the conclusion of the engaged proceedings. If any balance remains, it must be refunded to the client.[13]

Referred Cases:

1. P. Krishnamachariar vs. The Official Assignee of Madras[14], two Judges, held that a pleader could not have such a lien unless there was an express agreement to the contrary.
    
2. In pervious decision of the Bombay High Court in Tyabji Dayabhai & Co. vs. Jetha Devji & Co.[15] wherein the English law relating to the solicitor's lien was pursued. In common law, the solicitor has two rights, i.e., the right to retain the property in control/ownership until the dues are being cleared in the official capacity and secondly, the right to ask the court to direct that personal property recovered under a judgment obtained by his exertions stand as security for his costs of such recover.
    
3. A Full Bench of the Patna High Court in re B.N. Advocate in the matter of Misc. Judl[16]. In this Case the opinion expressed was that a pleader does not have the right to have control over the certified replica of a decision based on the anticipation of filing an appeal. The Bench further stated that the advocate may keep the certified copy only if specifically instructed to do so by the client.

Judgment
In the present appeal, the Supreme Court of India found the appellant i.e., Mr. Saxena is guilty of professional misconduct for not returning the Case file to the holder, who was the respondent. Court emphasized two factors to consider when deciding the appropriate punishment:

1. The court has not yet made a definite ruling on whether an advocate has a legal right to retain files for unpaid fees.
2. The appellant may have genuinely believed, based on judgement of certain HC, that he had a lien on the files.

Considering these circumstances, the court deemed it is not necessary to impose a severe punishment on the appellant. However, it was clarified that any advocate who commits similar professional misconduct in the future will be subject to the punishment determined by the Bar Council. The lenient punishment imposed in this particular Case should not be considered a precedent.

End-Notes:

1. R.D. Saxena vs. Balram Prasad Sharma AIR 2000 SC 2912
2. Advocates Act,1961, s.38
3. ibid
4. Indian Contract Act,1872, s.171
5. Advocate Act,1961, s.36-B
6. Advocate Act,1961, s.35
7. Advocate Act,1961, s.38
8. Indian Contract Act,1872, s.171
9. Indian Contract Act,1872, s.148
10. Indian Contract Act,1872, s.171
11. Sales of Goods Act,1930, s.2(7)
12. R.D. Saxena vs. Balram Prasad Sharma AIR 2000 SC 2912
13. ibid
14. P. Krishnamachariar vs. The Official Assignee of Madras AIR 1932 Madras 256
15. Tyabji Dayabhai & Co. vs. Jetha Devji & Co.AIR 1927 Bombay 542
16. re B.N. Advocate in the matter of Misc. Judl AIR 1933 Pat 571