Monday, September 25, 2023

Illegal Fee Of Advocate Is Not A Legal Claim: Madras High Court Quashes Proceedings Against Client For Dishonour Of Cheque Paid To Advocate

The Madras High Court recently came to the rescue of a client who had proceeded against the Negotiable Instruments Act based on a complaint by a lawyer for dishonour of cheque by observing that a fee, which is per se illegal as per the Legal Practitioners Rules, will not be a legal claim and a legal liability could not be fastened upon the client to pay the same.

Justice G Ilangovan of the Madurai Bench thus quashed the proceedings before the Fast Track Court in Madurai after observing that the continuation of criminal proceedings against the client would be an abuse of the process of law.

Legal process can be undertaken to advance or vindicate the grievance, but it should not be permitted to be taken as an act of aberration, abuse and that too by any legal practitioner. So, the entire process is liable to be quashed,” the court further observed.

The court was hearing a plea by Davidraj seeking to quash the criminal proceedings against him initiated on the basis of a private complaint made by V Pavel, an Advocate practising in Madurai.

In his complaint, Pavel had claimed that Davidraj had approached him in 2008 for legal assistance and was facing a debt of more than 1.3 crore along with various criminal cases. Pavel further claimed that no fee had been paid for legal assistance but an assurance was given that Davidraj will execute sale deed for 10 cents. Pavel also complained that in November 2012, he had even allowed Davidraj to stay in his office when he was facing threat to life. However, after this Davidraj issued a notice for giving consent for change in vakalath and when Pavel demanded Rs. 10 Lakh as fee, a cheque was issued which, when presented, was returned as Funds Insufficient. Thus, Pavel filed a private complaint.

Seeking to quash this private complaint, Davidraj argued that the amount of Rs. 10 Lakh claimed by Pavel itself was illegal as per the Legal Pracitioner’s Fees Rules 1973. Pavel, on the other hand, claimed that the cheque was not issued only towards the payment of legal fee but discharged towards the liability incurred for the several expenses during the course of the legal engagement.

The court however agreed with the submission made by Davidraj that there were no documents to show that the amount was paid for all the litigations that were defended by Pavel. Thus, the court observed that the payment was not contractual in nature and as per the Apex Court decision in B Sunitha v State of Telangana and another, when the payment was not contractual, a petition under Section 138 of Negotiable Instruments Act was not maintainable.

As mentioned earlier, absolutely, no contractual document has been filed by the respondent to show the terms between the petitioner and himself to show all the litigations defended by him a consolidated fee was agreed to pay by the petitioner. In the absence of such primary document, or even the statement and the complaint, then mere issuing of the cheque in the facts and circumstances of the case will not create any legal liability,” the court noted.

The court also noted that the fee claimed by Pavel was prima facie illegal as per the Rules and thus, no legal liability could be fastened upon Davidraj to honour the cheque.

Apart from that, in the light of the Legal Practitioner's Fees Rules 1973, the fee that has been claimed by the respondent prima facie shows illegal in nature. So, the illegal claim cannot be construed as legal claim. No legal liability can be fastened upon the petitioner to honour the above said cheque. So this contention on the part of the respondent is rejected,” the court observed.

The court thus allowed the application and quashed the proceedings.

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