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Bar Council cannot initiate disciplinary proceedings for transactions unrelated to professional conduct: SC

Published on 19 Dec 2017 by Team

Chhattisgarh Bar Council

Image courtesy - onlinechhattisgarh.com

In a recent judgment, the Division Bench of Justices AK Sikri and Ashok Bhushan of the Supreme Court has emphasised that disciplinary proceedings cannot be initiated by the Bar Council for transactions that are unconnected with the professional conduct of an advocate.

The case has its genesis in December 2003, when a complaint was lodged with the Bar Council of Chhattisgarh, alleging professional misconduct on the part of advocate Kaushal Kishore Awasthi.

The advocate had been engaged by the complainant in connection with a case concerning the division of certain land in 1989. With the consent of the parties, the land was divided by a court decree passed in 1994. Then in 2003, the complainant sought to sell his apportioned land to a third party for a price of Rs 30,000.

The advocate, however, objected to the sale, claiming that the complainant did not have full ownership of the proposed land and that the market value was also shown less in the sale deed.

The complainant found fault with this objection, stating that the appellant was neither an interested party in the said transaction nor was he authorised by any party to raise such objections. The lawyer’s act of appearing before the office of the Deputy Registrar and objecting to the registration of the sale deed, therefore amounted to professional misconduct.

The advocate made reference to a collective sum of Rs 40,000 that was due to him from the complainant and his son. He pointed out that the the complainant had offered half the share of the apportioned land as security for this loan. The complainant was, therefore, prevented from selling the land before clearing his debt to the advocate.

A disciplinary committee of the State Bar Council passed orders in February 2006, holding the appellant guilty of professional misconduct. As punishment, the advocate’s licence was suspended for a period of two years.

While the guilt of the advocate was confirmed on appeal to the Bar Council of India (BCI), the term of punishment was reduced to one year, with a fine of Rs 25,000 to be paid to the complainant. This order was subsequently challenged by the advocate before the Supreme Court.

It was submitted before the Supreme Court that even if the  facts alleged by the complainant are accepted as correct, the act of the appellant was not as an advocate and, therefore, could not amount to committing misconduct.

The Court referred to the Rule 22 of the BCI’s Standards of professional conduct and Etiquette, which bars advocates from involving themselves in the bid or purchase of property sold in the execution of a decree or order in any suit that he is professionally engaged in. The Court held,

Rule 22 is the relevant Rule in the instant case which proscribes an Advocate from directly or indirectly making a bid for or purchase either in his own name or in other’s name for his own benefit or for the benefit of any other person any property sold in the execution of a decree or order in any suit, appeal or other proceedings in which he was in any way professionally engaged.

In the instant case, however, the Court held that this bar would not apply, given that the impugned action was in relation to property that was no longer the subject of any legal proceeding in which the advocate-appellate was professionally engaged.

The Court observed,

Admittedly, in the instant case, the complainant was selling the property to the intending buyer which was an arrangement between them unconnected with any legal proceedings. The said property was not being sold in execution of any decree, in which proceedings the appellant was engaged, as noted above.

Insofar as the filing of the Suit by the appellant on behalf of the complainant is concerned, that had resulted into passing of decree and the proceedings had concluded. Even as per the complainant’s own admission, it is much thereafter that the complainant intended to sell the property in question when he found himself in need of money. It is this sale which the appellant tried to interdict. He was not doing so in the capacity of an Advocate.

In other words, the Bench held that the transaction in question did not have any connection to the professional conduct of the advocate.

As per him, the complainant was not authorised to sell the property without repaying his debt. Whether the appellant was right in this submission or not, is not relevant. What is relevant is that this act has nothing to do with the professional conduct of the appellant.

The Court, therefore, deemed the initiation of disciplinary proceedings against the appellant by the State Bar Council as improper and without jurisdiction. As a consequence, the order of the Bar Council of India was set aside.

Source - barandbench.com

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