BAR COUNCIL OF KERALA

(Statutory Body constituted under the Advocates Act, 1961)

Bar Council Bhavan, High Court Campus, Kochi-682031

BEFORE THE DISCIPLINARY COMMITTEE NO.2

BAR COUNCIL OF KERALA

Chairman : SRINATH GIRISH. P, ADVOCATE

Member : PRAMOD S.K, ADVOCATE

(Wednesday the 31st Day of March 2021)

CP No.94/2015

DC No. 29 / 2019

Deepak Aswani,

Managing Partner of M/s Lachmandas & Sons,

‘Devi Complex’, Doraiswamy Iyer Road,

Kochi – 682 035. - Complainant

V.J. Ruby,

Advocate,

Prayer Home, Door No.44/1154,

Convent Road, Vyttila,

Kochi – 682 019. - Respondent

Complaint under Section 35 (1) of the Advocates Act, 1961 (Referred to the
Disciplinary Committee as per Resolution No.13 of the Bar Council of Kerala dated 22-
9-2019)

This complaint having come up before the Disciplinary Committee on the 23rd
day of March 2021 in the presence of Adv. Sampath V. Toms, Counsel for the
Complainant and the respondent in person, the Committee hereby passes the following

ORDER

The case of the complainant, as seen in the complaint filed by him before the
Secretary of the Bar Council of Kerala on 16-7-2015, is as follows: The complainant had
engaged the respondent Advocate for conducting various cases. The respondent had
issued various bills to the complainant, towards her fees, court fee expenses and other
items. As per the said bills, a total sum of Rs.6,48,351.71 (Rupees Six Lakhs Forty Eight
Thousand Three Hundred and Fifty One Paise Seventy One Only) was paid to the
respondent by the complainant. The respondent had also availed of a hand loan of
Rs.2,00,000/- (Rupees Two Lakhs Only) from the complainant on 23-2-2013, promising
to repay the same with interest within two months, but did not repay the same. The
respondent has not spent the amounts taken from the complainant for the purposes
specified and has misappropriated the same. Though the complainant repeatedly
requested her for copies of the plaints, etc. in the cases and details of the progress in
the same, she did not comply with his request. The complainant has reasons to believe
that the respondent has not filed the cases entrusted to her. He had sent a registered
legal notice dated 11-4-2015 to the respondent, asking her to furnish the case details
and return the case records, but she did not respond even though she received it. A
further notice dated 5-6-2015 was issued to her, but evoked no response. Since the case
numbers, details of courts and other particulars are not given to the complainant, he
is unable to ascertain the said details through other counsel. The respondent has
committed professional misconduct. She is liable to return the case files to the
complainant, with all particulars thereof. The complainant thus seeks appropriate
action against the respondent.

The respondent did not respond to the notices of the complaint issued on behalf
of the Bar Council of Kerala or file any written statement before the Council. The
matter was thus referred to the Disciplinary Committee as per the Resolution No.13 of
the Bar Council of Kerala dated 22-9-2019.

Notice was issued to the respondent to appear before the Disciplinary

Committee. The matter was posted on 17-11-2019, 8-12-2019, 2-1-2020 and 14-1-2020.
The complainant was present on the first two postings, but the respondent had not
been served. The complainant was directed to produce the correct address of the
respondent. On 2-1-2020 and 14-1-2020, both parties were absent. A reminder was
issued to the complainant to produce the correct address of the respondent and the
matter was posted to 23-2-2020. On the said day, a representation was made on behalf
of the respondent seeking time for her statement. Thereafter, the matter could be
taken up only on 13-2-2021 due to the situation following the outbreak of the COVID19
pandemic.

On 13-2-21, Adv. Sampath V. Toms filed vakalath for the complainant, along with
a detailed statement of facts and supporting documents. The respondent appeared in
person and filed a representation that a settlement had been entered into. This was
disputed by the counsel for the complainant. The matter was posted to 28-2-2021, on
which day the respondent filed her statement in the matter. The case was posted for
framing charge on 14-3-21.
 On 14-3-2021, the Memorandum of Charges was read over to the respondent,
who denied the same. The case was posted to 23-3-2021 for evidence.

Based on the pleadings, the following points of dispute arise for consideration:

1. Whether there is any Client-Advocate relationship between the complainant and

the respondent?
2. Whether the respondent has committed any professional misconduct?
3. If so, what punishment is to be meted out to the respondent?

When the matter was taken up for evidence on 23-2-2021, the complainant filed his
affidavit–in-chief. However, the respondent submitted that she has no cross
examination to offer to the complainant. She also stated that she has no objection to
the documents produced by the complainant, which were sought to be marked as
exhibits in evidence on his side. She endorsed the same on the proof affidavit filed by
the complainant.

The complainant was examined as PW1. Exhibits C1 to C22 were marked in evidence
on his side. No cross examination was offered by the respondent. Evidence on the side
of the complainant was closed.

The respondent thereafter submitted that she has no oral evidence to tender and
endorsed the same.

Both sides were heard.

Points No.1 & 2 : For convenience’s sake, both these points are considered together.
The grievance of the complainant is that he had entrusted several cases to the
respondent and paid more than Rs. Six Lakhs to her towards her fees, court fee,
expenses, etc. Exts.C1 to C20 are the true copies of the bills issued by the respondent
to the complainant in respect of the said cases. In all the said documents, she has
certified that the amounts claimed by her have been received. PW1 states that the
respondent, having sought for and obtained amounts towards court fee from the
complainant for filing civil cases against various customers, had filed only private
criminal complaints against the parties and no suits and has appropriated the amounts
paid towards court fee. In certain instances, the amounts claimed and received towards
court fee were exorbitant, much more than that payable on the amount due from the
defaulters. If indeed, any civil cases were filed, she has failed to contest them. She has
caused a power of attorney to be executed by the complainant in favour of her brother,
which prevented the complainant from knowing whether the cases had been filed as
stated by her and following up the same. She failed to provide any details of the cases
to the complainant when requested to do so and stopped contacting the complainant.
Exts.C21 & C22 lawyer notices were issued to her on behalf of the complainant, which
she received but did not respond to. Thereafter she shifted her residence and could not
be traced. After she was located pending the above complaint, she stated to the
complainant that almost all the cases had been decreed in his favour, but failed to
provide details of the case numbers, courts or judgments. The loan granted to her has
not been fully repaid. On these grounds, he contended that the acts of the respondent
amount to misconduct and sought penal action against her.

Though the exhibits marked on the side of the complainant are only photocopies,
the respondent has not disputed their authenticity or correctness. She has also not cross
examined PW1 as to the veracity of any of his contentions.

The respondent has also not adduced any contra evidence in the matter. In her
statement dated 13-2-2021, she has stated that the matter had been talked over
between the complainant and herself that that it was decided to settle the matter if
the pending cases are disposed of within six months, depending on the payments made
by the opposite parties in the said cases. She further stated that the loan would be
repaid in instalments of Rs.25,000/- per month and that a sum of Rs.35,000/- had been
paid by her towards the same. This was disputed by the complainant’s counsel.

In her statement dated 28-2-2021, she admitted that the cases specified by the
complainant were entrusted to her and the bills produced by him were issued by her.
She claimed that she had received an amount of Rs.32,000/- as fees after deducting
tax at source. She stated that due to some personal inconvenience, a delay of 4-5 years
has occurred, but after informing the complainant, she has restarted and continued the
cases entrusted to her. She also reaffirmed that she would repay the loan as promised.
She is taking efforts to trace out the clients in the cases and does not have any dispute
regarding the completion of the work entrusted.

It is pertinent to note that the respondent does not provide any details of the
cases and their current status in her statement. As such, the complainant is still in the
dark as to the same. When the matter was heard, the counsel for the complaint averred
that the respondent has committed grave breach of trust and dereliction of duty to her
client, the complainant. He pressed for appropriate punishment for professional
misconduct to be meted out to her. The respondent stood by her statement and
submitted that she would clear the issue within the time specified in her statement.
However, she has not provided any details of the cases to the complainant, which she
could very well have done if in fact, such cases had actually been filed by her.

The fact that amounts have been paid by the complainant to the respondent is
amply proved by Exts.C1 to C20. As there is no contra evidence and in view of the
admissions made by the respondent in her statements and her giving up her right to
cross examine the complainant, this Committee accepts the case of the complainant as
true.

In L.C Goyal Vs. Mrs. Suresh Joshi & Others reported in 1999(3) SCC 376, the
Honourable Supreme Court of India held that misappropriation of a client’s money taken
towards Court Fee would amount to professional misconduct. An Advocate is bound to
uphold the high traditions of the legal profession and serve the society with sincerity
and honesty. If an Advocate falls from such standards, he deserves punishment
commensurate with the gravity of his misconduct.

In AIR 1993 SC 1608 (D.S. Dalal Vs. State Bank of India), misappropriation by an
Advocate of amounts paid by a bank to him towards filing a suit and 1/3rd of his
professional fees was held to be professional misconduct. The punishment of removal
from the Roll imposed by the Bar Council of India to the erring lawyer was upheld by
the Honourable Apex Court.

In P.D Gupta Vs. Ram Murti reported in 1997(7) SCC 147, it was held that where
an Advocate demanded and received money from his client on a false representation
that it was needed to deposit it in Court and thereafter misappropriated it, he was
guilty of professional misconduct.

In this case, the reluctance of the respondent to provide the details of the cases
filed to the complainant justifies the conclusion that she has committed professional
misconduct. The burden of proof was on the respondent to establish that she had indeed
filed the cases entrusted to her by the complainant. Even though she has stated her
willingness to resume the work and conclude the same within six months, that cannot
take away from her liability to undergo punishment for professional misconduct.

Thus Points 1 & 2 are answered in favour of the complainant. There was a Client-
Advocate relationship between the complainant and the respondent. The respondent
has committed professional misconduct.

Point No.3 : The powers of the Disciplinary Committee under Section 35 (3) of the
Advocates Act include the power to reprimand the erring Advocate, to suspend him
from practice for such period as it may deem fit or to remove his name from the State
Roll of Advocates.

It is the opinion of the Committee that removal of the respondent’s name from the
State Roll is too harsh a punishment to be imposed on the respondent in the instant
case. At the same time, a mere reprimand will not suffice.

The Disciplinary Committee is of the opinion that to meet the ends of justice,
the respondent should be suspended from practice for an appropriate period. On
consideration of the facts of the case, the Disciplinary Committee feels that a period
of three months would be sufficient for such suspension.

However, to meet the ends of justice, an opportunity to reduce the period of

suspension must be granted to the respondent. It is made clear that in the event that
the respondent provides the details of the cases to the satisfaction of the complainant
within the period of the suspension, the complainant shall report the same to the Bar
Council of Kerala and the punishment of suspension meted out to the respondent shall
stand vacated forthwith.

In the result, the Disciplinary Committee No.2 of the Bar Council of Kerala hereby orders
that:

A) The respondent Advocate shall be suspended from practice for a period of three
(3) months from the date of this Order and that during the period of suspension,
the respondent Advocate shall be debarred from practicing in any Court or before
any authority or person in India.
B) In the event that the respondent provides the details of the cases entrusted to
her by the complainant to his satisfaction within the period of suspension
imposed, the complainant shall report the same to the Bar Council of Kerala and
the punishment of suspension imposed on the respondent shall stand vacated
forthwith.

Dated this the 31st day of March 2021,

Sd/- Sd/-

Srinath Girish. P, Pramod S K

Advocate Advocate
Chairman, Disciplinary Committee Member, Disciplinary Committee No.2,
No.2,
Bar Council of Kerala.
Bar Council of Kerala.

Complainant’s Witnesses :

PW1 : Deepak Aswani L

Complainant’s Exhibits:

Ext.C1 – Copy of Bill dated 5-03-2011

Ext.C2 – Copy of Bill dated 14-03-2011

Ext.C3 – Copy of Bill dated nil

Ext.C4 - Copy of Bill dated 18-04-2011

Ext.C4 (a) - Copy of Bill dated 27-08-2011

Ext.C4 (b) - Copy of Bill dated 17-10-2011

Ext.C4 (c) - Copy of Bill dated 2-01-2012

Ext.C5 - Copy of Bill dated 21-04-2011

Ext.C6 - Copy of Bill dated 25-07-2011

Ext.C7 - Copy of Bill dated 22-09-2011

Ext.C8 - Copy of Bill dated 2-11-2011

Ext.C9 - Copy of Bill dated 2-11-2011

Ext.C10 - Copy of Bill dated 16-08-2011

Ext.C11 - Copy of Bill dated 11-08-2011

Ext.C11 (a) - Copy of Bill dated 18-06-2013

Ext.C12 - Copy of Bill dated 12-06-2013

Ext.C13 - Copy of Bill dated 12-06-2013

Ext.C14 - Copy of Bill dated 4-07-2013

Ext.C15 - Copy of Bill dated 18-06-2013

Ext.C16 - Copy of Bill dated 12-06-2013

Ext.C17 - Copy of Bill dated 27-09-2010

Ext.C18 - Copy of Bill dated 28-09-2010

Ext.C19 - Copy of Bill dated 29-09-2011

Ext.C20 - Copy of Bill dated 3-11-2011

Ext.C21 – Copy of registered notice dated 11-04-2015

Ext.C22 – Copy of lawyer notice dated 5-6-2015

Respondent’s Witnesses : Nil

Respondents’s Exhibits : Nil