1/12/23, 11:13 PM SETTLEMENT WITH THE CLIENT DOES NOT MITIGATE OR WIPE OUT PROFESSIONAL MISCONDUCT.

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SETTLEMENT WITH THE CLIENT DOES NOT MITIGATE OR WIPE OUT PROFESSIONAL H: Direction to
operation of th
MISCONDUCT.
By: Mr. M. GOVINDARAJAN F: Cancellation
after 10days d
February 3, 2012 H: Detention o
transport of tea
All Articles by: Mr. M. GOVINDARAJAN       View Profile
H: Classificatio
Contents of GST - sold w
H: Classificatio
                        Each professional is expected by his client to be scrupulously honest and fair.   Each goods - Interac
profession has its own code of conduct.   A professional has to follow the professional ethics.  Any
A: Locker agre
client aggrieved against the professional who violates the code of conduct of his profession may make
January 2022 –
a complaint to its body. 
A: CUSTOMS
                        Legal profession is a noble profession.   It is not a business or a trade.   A person NOT LIABLE F
practicing law has to practice in the spirit of honesty and not in the spirit of mischief making or money A: Directed to
getting.  In ‘V.C. Rangadurai V. D. Gopalan’ –AIR 1979 SC 281 the Supreme Court held that Law’s payment depos
nobility as a profession lasts only so long as the members maintain the commitment to integrity and
A: Global Minim
service to the community.
– Work in fast t
                        Sec. 37(1) of the Advocates Act, 1961 provides for a remedy of an appeal to any person A: No Service
aggrieved against an order of the disciplinary committee of a State Bar Council under Sec. 35 to prefer be imposed on
an appeal to the Bar Council of India within 60 days from the date of communication of the order. 
A: Welding of r
Proviso to Sec. 37(2) provides that the disciplinary committee of the Bar Council of India shall not vary along with labo
the order of the disciplinary committee of the State Bar Council affecting the person prejudicially
without giving him a reasonable opportunity of being heard.  The Civil Procedure Code does not apply F: GST on repa
by Jeweller
to the proceedings of disciplinary committee.   Sec. 42 of the Act makes applicable provisions of the
Code in respect of matters contained therein while providing that the disciplinary committee of a Bar F: ITC on Tran
Council shall have the same powers as are vested in a civil court.  Sec. 39 of the Act makes Sections 5 related Electric
and 12 of the Limitation Act, 1963 applicable to the appeals preferred under Section 37 and Section 38 C: Faceless As
of the Act.  Standard Exam

                        In ‘Dhanraj Singh Choudhary V. Nathulal Vishwakarma’ – (2012) 204 TAXMAN 124 a A: GST Margin
Central Excise
on second han
  complaint was made by the Nathulal Vishwakarma, the respondent in the appeal, against the advocate
appellant to the Bar Council of Madhya Pradesh, Jabalpur making allegation of professional F: GST APPLIC
Delhi VAT
misconduct.  The main allegation is that in the sale deed dated 03.11.1999 executed by Jitendar Singh LABOUR CES
Central Sales Tax
Bakna in favor of Smt. Suchi Gupta, concerning sale of a house property.   The said document was F: whether gst
attested by the appellant.   It has been stated that on the western side of the sale property one shop up is leviable o
 
adjacent to the premises in occupation of the complainant has already been transferred by the vendor
N: Customs (A
to the Advocate appellant by giving him the ownership right, although the vendor’s father had entered
Value Declarat
into an agreement to sell the suit property to the complainant on 15.11.1991 for which the complainant
paid Rs.2,00,000/- towards sale consideration.  The complainant further alleged that he had already F: Stock transf
↑
filed a suit for specific performance of the agreement dated 15.11.1991 which was pending before the Top
court and was within the knowledge of the appellant.  The appellant filed a suit on behalf against the C: Discontinua
complainant for eviction of the said shop showing the complainant as a tenant. Quota for Impo

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1/12/23, 11:13 PM SETTLEMENT WITH THE CLIENT DOES NOT MITIGATE OR WIPE OUT PROFESSIONAL MISCONDUCT.
                        The complaint was referred to the disciplinary committee of the State Bar Council.  In H: Non-genuin
his reply to the notice issued by the Disciplinary Committee the advocate appellant explained the 69C - Sales tax
circumstances in which the sale deed dated 03.11.1999 were executed.  He expressed his ignorance H: Auction of p
about the statement made in the sale deed regarding the sale of shop in occupation of the complainant Department to
to the advocate appellant by the vendor.  On considering the evidence tendered by both parties the
H: Deemed Lo
Disciplinary Committee recorded its finding that the appellant advocate was guilty of professional
the value of inv
misconduct.  The State Bar Council on the findings of the Disciplinary Committee awarded punishment
of reprimand to the appellant vide its order dated 22.04.2002. H: Addition u/s
credits in the b
                        The complainant, being aggrieved against the order of State Bar Council, Madhya
H: Reopening
Pradesh filed an appeal under Section 37 to the Bar Council of India for enhancement of punishment to u/s 147 - unde
the appellant.  The appellant appeared before the disciplinary committee of the Bar Council of India.  
The Disciplinary Committee of Bar Council of India after hearing both sides allowed the appeal of the
complainant on 30.10.2004 and suspended the appellant from practice for a period of one year from
the date of communication of the order.  After the conclusion of hearing of the appeal  the advocate
appellant filed an application seeking permission to file cross appeal.   The said application was
examined by the Committee and held that under Section 37 of the Advocates Act an appeal should be
filed within 60 days from the date of communication of the order passed by the Disciplinary Committee
of the State Bar Council.   There is however no provision for filing application seeking permission to file
any appeal or cross appeal.  Therefore the application filed by the advocate seeking permission to file
cross appeal cannot be entertained and the same is liable to be rejected.  The Committee dismissed
the application of the advocate appellant.

                        Against this order the advocate appellant filed the present appeal before the Supreme
Court.  The appellant contended that he preferred cross appeal within 30 days of the receipt of the
notice of the appeal preferred by the complainant and that it is permissible under Order 41 Rule 22 of
the Code of Civil Procedure, 1908 which is applicable to the proceedings before the Disciplinary
Committee of the Bar Council of India.   The Supreme Court did not accept the arguments of the
appellant.  The Supreme Court held that the Code has not been applicable as it is to the proceedings
before the disciplinary committee.  Sec. 42 of the Act does not refer to the appeals.   Thus the
provisions contained in Order 41, including Rule 22 would have no application to the proceedings
before a Disciplinary Committee.  The Supreme Court further held that the there may not be any
difficulty in treating the cross appeal as an appeal under Section 37 of the Act, but then such appeal is
hopelessly time barred since the order was passed by the disciplinary committee of the State Bar
Council on 22.04.2002.

                        The Supreme Court observed that on a question put by the Disciplinary Committee to
the advocate appellant that prior to signing the sale deed in the form of witness why he did not read the
said document, his reply was that he did not consider it essential to read the contents of the sale deed. 
The Supreme Court astonished whether the contents of the advocate appellant could be believed.   It
found that it was not only undesirable but highly unethical on the part of the advocate appellant to have
created title or at least having attempted to create title in him in respect of the property for which
litigation was pending in the court and he was representing one of the parties in that litigation. 

                        The appellant further submitted that the appellant did not get any benefit out of the said
statement made in the sale deed, subsequently the above statement in the sale deed has been
expunged on the agreement of the vendor and vendee.    He further submitted that the suspension of
practice for one year was harsh.   He appealed for reduction of the suspension period.

                        The Supreme Court further found two interlocutory applications filed by the advocate
appellant and the complainant jointly for disposal of the appeals in terms of the compromise between
them.   The Supreme Court was unable to accede to their request.   It held that in view of the
settlement with the complainant does not mitigate or wipe out professional misconduct and must not
prevent adequate punishment to the advocate appellant and rejected the said interlocutory
applications.

                        The Supreme Court observed that the punishment for professional misconduct has two
objectives; one for deterrence and the other for correction.  To meet the above objectives the Supreme
Court is of the view to suspend the advocate appellant from practice for a period of three
months.                     

By: Mr. M. GOVINDARAJAN - February 3, 2012

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1/12/23, 11:13 PM SETTLEMENT WITH THE CLIENT DOES NOT MITIGATE OR WIPE OUT PROFESSIONAL MISCONDUCT.
 

Very interestng article on professional misconduct and on ethics in relation to Advocates. Thanks for
updating everyone on recourse available if facts and circumstances so desire.

By: YP SOOD
Dated: 05/02/2012

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