AI Structured Summary
Not yet generated for this judgment
Judgment
Ashok B. Hinchigeri, J. - The petitioners'' grievance is over the Joint Registrar of Co-operative Societies accepting the vakalath of the learned Counsel, Sri P. Anand for the third respondent-Society, overruling the petitioners'' objections to it.
Sri. Veerabhadraiah, the learned Counsel for the petitioners submits that the vakalath filed by the learned Advocate Sri P. Anand for the respondent-Society in the proceedings before the Joint Registrar of Co-operative Societies is without the authority of law. It reads as if it is filed in the personal capacity of the Secretary. The name of the Society is not even mentioned in the first line of the vakalath.
He submits that the vakalath filed on 19-5-2016 is shown to have been executed on 28-4-2016. He submits that the Board of Directors of the respondent-Society has not passed any resolution appointing the fourth respondent as the Counsel in the proceedings before the Joint Registrar of Co-operative Societies. He complains of the violation of the Bye-laws 55(14) and 56(5) of the respondent-Society''s Bye-laws (Annexure-B).
He submits that as per Section 28-C(2)(p) of the Karnataka Co-operative Societies Act, 1959 (''the said Act for short) it is only the Board of Co-operative Society which is clothed with the power to institute, defend or compromise legal proceedings. Consequently, no power to defend any legal proceedings independently of the Board of Co-operative Society is available to its Secretary. He submits that suing or being sued can only be on behalf of the Co-operative Society as per Section 29-G(4)(j) of the said Act.
Neither in the affidavit in support of the I.A. for vacating the stay filed in the proceedings before the second respondent nor in the Caveat petition filed in these proceedings in this Court, there is any reference to the authorisation by the Board of Directors of the Society to contest the case.
He submits that the appointment of Sri Anand as the Counsel to appear for the Society in the proceedings before the second respondent-joint Registrar is without any due authorisation. He reads out the provisions contained in Order 3, Rule 4 of Civil Procedure Code 1903 which is extracted herein below:
"4. Appointment of pleader. - (1) No pleader shall act for any person in any Court, unless he has been appointed tor the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.
(2) Every such appointment shall be filed in Court and shall for the purposes of sub-rule (1) be deemed to he in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client."
He submits that the five Directors of the respondent-Society have already objected to the continuation of the litigation and to the incurring of the litigation expenses.
He submits that the fourth respondent-Advocate is a beneficiary of the impugned order and that therefore it is not advisable for him to appear for the third respondent in this case.
He submits that Rule 14-AM(12) of the Karnataka Co-operative Societies Rules, 1960 states that the Chief Executive Officer (Secretary in the instant case) shall have the power to institute, defend, conduct, compound or abandon any suit or other legal proceedings by or against the Society and enter into compromise or arbitration with the creditors and debtors of the Society with the approval of the Board of Directors. This being the provision, the Secretary of the third respondent-Society cannot contest the case on his own.
He submits that the fourth respondent''s Advocate Sri P. Anand is not a party in the proceedings before the Joint Registrar of Co-operative Societies. He is appearing for the third respondent-Society. The designated Senior Advocate Sri Jayakumar S. Patil cannot appear for the respondent 3. The Senior Counsel taking instructions from P. Anand amounts to taking instructions from the party-in-person, which is not permissible in law.
He submits that as held by the Division Bench of the Madras High Court In Re. S. Subramanya Sarma and Others, AIR 1941 Mad. 808 a Counsel cannot appear in the same matter both as a Counsel and as a party; he cannot be in the Court in the same matter in two capacities. He relies on the Supreme Court''s decision In the matter of Mr. ''G'' a Senior Advocate of the Supreme Court, AIR 1954 SC 557 to advance the submission that the Advocate has to behave himself in a manner befitting his status as an officer of the Court.
Nextly, he sought to draw support from the Apex Court''s judgment In Re. ''M'', an Advocate, AIR 1957 SC 149 wherein it is held in the cases of professional misconduct of the legal profession, the Court is not concerned with the ordinary legal rights but with the special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who, because of their privileged status, are subject to certain disabilities which do not attach to other men and which do not attach even to them in a non-professional character. Having regard to their high privilege that an Advocate enjoys, his conduct should not be unbecoming of an Advocate.
He submits that the legal profession is a para-public institution which deserves the special confidence of and owes greater responsibility to the community at large than the ordinary run of agency. In support of his submissions, he relies on the Apex Court''s judgment in the case of Smt. Jamilabai Abdul Kadar v. Shankarlal Guhibchand and Others, (1975) 2 SCC 609. He would also rely on the Division Bench judgment of the Patna High Court in the case of Chhatrapati Shivaji and Others v. The State and Others, AIR 1990 Pat. 157 wherein it is held that the gentlemanly conduct requires an Advocate to withdraw from the case to avoid any embarrassment or awkward situation. Further in a case where the petitioner - Advocate has to face the situation of admitting his identification on affidavits and also of saying that the documents are forged, then he is in an embarrassing position. The professional etiquette has been the backbone of the conduct of the Counsel in the Courts. Counsel have always extended the values, decencies and Courtesies not only to the Courts but to themselves on both the sides and also to the parties for or against whom they appear.
He relies on the Bombay High Court''s decision in the case of Oil and Natural Gas Commission v. Offshore Enterprises Inc., AIR 1993 Bom. 217 wherein it is held that the constituted attorney of a suitor cannot combine with his role of an Advocate in the same cause simultaneously.
He brings to my notice the Apex Court''s judgment In Re. Ramesinvar Prasad Goyal, Advocate, AIR 2014 SC 850 wherein it is reiterated that the lawyers play an important part in the administration of justice. They are equal partners with Judges in the administration of justice. The profession requires the safeguarding of high moral standards. As an officer of the Court, the overriding duty of a lawyer is to the Court, the standards of his profession and to the public. He has also relied on the Division Bench decision of the Delhi High Court in the case of Deepak Khosla v. Union of India, 2010 (4) Kar. L.J. 13 emphasising the importance of filing the vakalathnama. The Delhi High Court has taken judicial notice of the following defects routinely found in the vakalathnama (a) failure to mention the names of the persons executing the Vakalathnama, and leaving the relevant column blank; (b) failure to disclose the name, designation or authority of the person executing the Vakalathnama on behalf of the grantor (where the Vakalathnama is signed on behalf of a company, society or body) by either affixing a seal or by mentioning the name and designation below the signature of the executant (and failure to annex a copy of such authority with the Vakalathnama).
He read out the provisions contained in Sections 29, 30 and 35 of the Advocates Act, 1961, which are extracted herein below:
"29. Advocates to be the only recognised class of persons entitled to practise law - Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, Advocates.
Right of Advocates to practise. - Subject to provisions of this Act, every Advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends. -
(i) in all Courts including the Supreme Court;
(ii) before any Tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such Advocate is by or under any law for the time being in force entitled to practise.
Punishment of Advocates for misconduct.- (1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any Advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
(1 A) The State Bar Council may, either of its own motion or an application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.
(2) The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the Advocate concerned and to the Advocate General of the State.
(3) The disciplinary committee of a State Bar Council after giving the Advocate concerned and the Advocate General an opportunity of being heard, may make any of the following orders, namely.�
(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
(b) reprimand the Advocate;
(c) suspend the Advocate from practise for such period as it may deem fit;
(d) remove the name of the Advocate from the State roll of Advocates.
(4) Where an Advocate is suspended from practise under clause (c) of sub-section (3), Ire shall, during the period of suspension, be debarred from practising in any Court or before any authority or person in India.
(5) Where any notice is issued to the Advocate General under sub-section (2), the Advocate General may appear before the disciplinary committee of the State Bar Council either in person or through any Advocate appearing on his behalf."
He submits that Part VI, Chapter I of the Bar Council of India Rules, dealing with the restrictions on Senior Advocates, are not followed in this case. Clauses (c) and (d) of the said Rules read out by him are as follows:
(c) He shall not accept instructions to draft pleading or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court or Tribunal, or before any person or other authority mentioned in Section 30 of the Act or undertake conveyancing work of any kind whatsoever. This restriction however shall not extend to settling any such matter as aforesaid in consultation with an Advocate in Part II of the State roll.
(d) He shall not accept directly from a client any brief or instructions to appear in any Court or Tribunal, or before any person or other authority in India "
No separate order is read out on 23-6-2016. In fact, as a matter of fact, when the petitioners sought the necessary relevant documents, a copy of the order, dated 2.3-6-2016 is not even issued to them. It is the specific case of the petitioners that the separate order is brought into existence subsequent to the writing of the order-sheet, dated 23-6-2016. He submits that the second respondent''s order is not reasoned; it is cryptic. It does not consider the various materials produced by the petitioner and by the third respondent-Society. In the impugned order one hardly finds the reference to the orders, dated 7-11-2015.
He submits that the respondents have committed the fraud. The affidavit filed by the respondent 2 is vague, as it does not meet the specific averments made by the petitioner.
Tie submits that the petitioners are the elected directors of the Board of the third respondent-Society. When they pointed out certain irregularities in the purchase of the properties, the President and Vice-President vindictively made the petitioners lose their primary membership of the Society itself.
Sri A.S. Ponnanna, the learned Additional Advocate General appearing on behalf of the respondents 1 and 2 submits that earlier no Advocate could appear before the Registrar as a matter of right, fie read out the provisions contained in Section 117(2) of the said Act, which are extracted herein below:
"117. Procedure for settlement of disputes and power of the Registrar or any other person to whom a dispute is referred for decision under Section 70.-(1)..........
(2) Except with the permission of the Registrar or any other person deciding a dispute, as the case may be, no party shall be represented at the hearing of a dispute by a legal practitioner."
However, the afore-extracted provisions are omitted by Act No. 3 of 2013 with effect from 11-2-2013 with the deletion of Section 117(2). Now no application is required to be made to appear before the Registrar seeking his leave for representing a party to the dispute.
The learned Additional Advocate General also brings to my notice the provisions contained in Section 29-G(4)(j) of the said Act for advancing the submission that the Secretary of the Society can sue and be sued on behalf of the Co-operative Society. It is not envisaged anywhere in the Karnataka Co-operative Societies Act, 1959 or the Bye-laws of the third respondent-Co-operative Society that the Secretary has to be authorised by the Board of Directors to engage the services of a Counsel. He submits that under Bye-law No. 56(5), the Secretary has the power and duty to represent the Society in the Courts and before the offices. He submits that Bye-law No. 55(14) provides for the appointment of the legal consultants, but the same does not mean that when a case is filed, the Board of Directors has to pass a resolution for the appointment of a particular Counsel.
He submits that the proceedings before the respondent 2 commenced on 26-4-2016, that the vakalath is executed two days thereafter that is on 28-4-2016 and that it is tiled on 19-5-2016. He submits that there is nothing wrong in the vakalath filed on behalf of the third respondent and its acceptance by the Joint Registrar of Co-operative Societies.
He submits that P. Anand is only an Advocate who represented the respondent-Society before the Joint Registrar of Co-operative Societies. He is neither a proper nor a necessary party for the adjudication of the issues falling for consideration in these writ petitions. Making the fourth respondent-Advocate a party in these petitions is untenable, so contends the learned Additional Advocate General.
He submits that the petitioner 3 has signed the order sheet, dated 23-6-2016. ft the separate orders were not read out by the second respondent-joint Registrar in the open Court, the petitioner 3 would have raised the objection then and there itself. He submits that the second respondent-joint Registrar has been conducting the proceedings in accordance with law.
Sri jayakumar S. Patil, learned Senior Counsel appearing on behalf of Sri P. Anand for the respondent 3 submits that how the authorisation to engage a Counsel in any proceedings is obtained is not the concern of the petitioners. He submits that the vakalath is duly executed by the Secretary of the third respondent-Society. It bears the seal and signature. If the Board of Directors of the third respondent does not want the services of the said Counsel, it can always change the Counsel. He submits that if the Directors do not want the services of the learned Advocate Sri P. Anand or anybody for that matter, they can pass a resolution to that effect. No such resolution is passed. Under Section 30 of the Advocates Act, 1961 the learned Counsel Sri P. Anand has every right to represent the third respondent-Society in the proceedings before the Joint Registrar of Co-operative Societies. He submits that the third respondent-Society can sue or be sued through its Secretary.
He submits that the issue of vakalath is raised only to drag on the proceedings. He submits that the petitioners have obtained the ex parte interim order of stay. Now the third respondent-Society has made an application for vacating it. Instead of addressing themselves on the vacating stay application, all untenable issues are being raised.
He points out that Sri P. Anand is not a party to the dispute raised under Section 70 of the said Act. He takes serious exception to the petitioner''s side calling Sri P. Anand the beneficiary of the litigation. Sri. P. Anand, who is not a party in the proceedings before the Joint Registrar of Co-operative Societies, is intentionally made a party to this petition. He submits that this is a questionable method employed by the petitioner to prevent Sri P. Anand from appearing for the third respondent-Society in this case.
As per Section 29-G(4) of the said Act, the Secretary is assigned with a number of responsibilities which he is required to discharge subject to the general supervision and control of the Board.
He visualizes a hypothetical situation. If the Secretary receives the emergent notice on behalf of the Co-operative Society for its appearance before the Court, he cannot wait till the Board of Directors passes a resolution and appoints the Counsel. As the Chief Executive Officer, he is required to act swiftly in the interest of the Co-operative Society.
In the course of rejoinder, Sri Veerabhadraiah submits that the powers conferred by Section 29-G(4) of the said Act cannot be exercised by the Secretary independently of the Board of Directors. He submits that the impugned order is not reflective of the consideration of the relevant materials. He submits that there is no reference to the Board resolution, dated 7-11-2015 in the impugned order.
He justifies the use of the term ''beneficiary'', as the learned Counsel has acted improperly and illegally.
He submits that the affidavit filed by the Joint Director of Co-operative Societies does not meet the allegations levelled against him. He submits that he has personally gone to the Office of the Joint Registrar of Co-operative Societies and scrutinised the file. He did not find a separate order, dated 23-6-2016 in the file.
Smt. Savithramma, learned Government Pleader submits that the Joint Registrar of Co-operative Society has indeed considered the resolution passed by the Board of Directors of the third respondent-Society in its meeting held on 7-11-2015.
The first question that falls for my consideration in this case is whether the vakalath filed by the learned Counsel Sri P. Anand on behalf of the respondent-Society before the Joint Registrar of Co-operative Societies suffers from any infirmity? The vakalath is signed by Smt. Manjula M, Secretary of the respondent-Society. It also bears office seal. The vakalath is executed on 28-4-2016, two days after the commencement of the dispute proceedings (26-4-2016). It is filed on 19-5-2016. The vakalath does not suffer from any infirmity or incompleteness.
The next question that falls for my consideration is whether the vakalath given to Sri P. Anand is without the authority of law? Section 29-G(4) of the said Act states that the Chief Executive Officer shall sue or be sued on behalf of the Co-operative Society subject to the general supervision and control of the Board of Directors. Rule 14-AM(12) of the Karnataka Co-operative Societies Rules, 1960, dealing with his powers and functions states in clause (12) that he shall institute, defend, conduct, compound or abandon any suit or legal proceedings by or against the Society and enter into compromise or arbitration with the creditors and debtors of the Society with the approval of the Board. Thus, that the Secretary'' has the power coupled with the duty to defend the Co-operative Society in any'' legal proceedings is not in dispute at all. That the exercise of power and discharge of duties in any legal proceedings is subject to the general supervision, control and approval of the board is also not in dispute.
The allied question would be whether the Board of Directors has to pass the resolution for contesting the case and for appointing the Advocate. Bye-law No. 56(5) of the respondent-Society''s Bye-laws require the Secretary to represent the Society in the Court and before the offices. But that does not mean that every time a case is filed against the Co-operative Society, the Secretary has to approach the Board of Directors for resolution and authorisation. The petitioners'' reliance on Bye-law Nos. 55(14) and 25 does not come to their rescue in any way. Bye-law No. 55(14) provides for the appointment of legal consultants on retainership basis by die Co-operative Society. Bye-law No. 55(25) provides for initiating the legal proceedings or settling the dispute by the Board of Directors invoking the said powers. The Board of Directors can always pass a resolution not to contest the dispute on hand or to settle the matter. But the said Bye-laws cannot be marshalled to contend that the Secretary cannot defend the Society in the dispute on hand in the absence of any resolution by the Board of Directors. Even now also, there is no legal impediment for the Board of Directors to pass the resolution not to contest the case or to settle the matter and further to terminate the agency'' or power or vakalath given to Sri P. Anand.
The third question that falls for my'' consideration is whether the Senior Advocate Sri jayakumar S. Patil can appear for Sri P. Anand, the learned Counsel who represents the respondent-Society before this Court? Sri. P. Anand is an Advocate, who appears for the respondent-Society'' in the proceedings before the Joint Registrar of Co-operative Societies. Obviously he is not a party'' before the Joint Registrar of Co-operative Societies. For examining the issue of whether the vakalath given by the Secretary of the respondent-Society, Sri P. Anand is neither a proper nor a necessary party. The petitioners appear to have made him the respondent 4 by way of abundant caution.
I am not persuaded to accept the submission urged on behalf of the petitioners that the Senior Advocate Sri Jayakumar S. Patil cannot appear for Sri P. Anand, as Sri P. Anand himself is a party to these writ proceedings. The filing of the vakalath by Sri P. Anand is neither unauthorised nor illegal. Therefore, no disability can be attached to the Senior Counsel, Sri Jayakumar S. Patil for appearing for Sri P. Anand for the respondent-Society.
The last but not the least question that arises for my consideration is whether the impugned order, dated 23-6-2016 is liable to be quashed. By the, impugned order, the Joint Registrar of Co-operative Society accepted the vakalath overruling the petitioners'' objections thereto. My perusal of the impugned order (Annexure-J) reveals that what has weighed with him in accepting the vakalath is that the Board of Directors of the respondent-Society passed the resolution in its meeting held on 7-11-2015 to contest the proceedings by justifying the cancellation of the membership of the petitioners. That the Joint Registrar''s order could have been better is no ground for interfering in it, as he is neither a legal professional nor he is a judicially trained officer.
I am also not persuaded to accept that the separate order, dated 23-6-2016 was brought into existence subsequently for one simple reason. The order sheet, dated 23-6-2016 states that the order on the memo is read out in the open Court. The said order sheet, dated 23-6-2016 is also signed by the petitioner 3. If separate orders on the petitioners'' memo were not pronounced, the objections ought to have been raised then and there itself.
In the result, I dismiss these petitions No order as to costs.