R.Vijayakumar v. The Bar Council of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22-10-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.No.9740 of 2007andMP Nos.1 and 3 of 2007R.Vijayakumar.. Petitioner vs1.The Bar Council of Tamil Nadu Rep. By its Secretary High Court Campus Chennai 104.

K.Ramu (R2 impleaded as per order dated 19.9.2007 in MP 2/2007).. Respondents Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari calling for the recordsof the case pertaining to D.C.C.No.25/2007 dated 20.2.2007 on thefile of the first respondent and to quash the same as arbitrary andillegal. For Petitioner: Mr.S.SethuramanFor Respondents: Mr.Venkatakrishnan for R2 Mr.C.Kanakaraj for R1ORDERSeeking to quash an enquiry pending on the file of the firstrespondent Bar Council of Tamil Nadu in D.C.C.No.25/2007 dated20.2.2007, the petitioner has brought forth this writ petition fora writ of certiorari. 2. The affidavit in support of the writ petition and theaffidavit filed by the second respondent in support of petition tovacate the stay, are perused. The Court heard the learned Counselon either side.

The case of the petitioner in short is that he is apracticing Advocate in Madras; that a power of attorney wasexecuted by one Kannappa Pillai and his brther Balu Pilli for saleof their immovable property; that apart from that, they have alsoexecuted an agreement for sale for a consideration of Rs.7,37,000/-pursuant to which the property was sold to the third parties; thatthe amount which would represent the consideration for sale of https://hcservices.ecourts.gov.in/hcservices/ those property, has also been actually paid to them, and thus, theentire transaction came to an end; that while the matter stoodthus, the second respondent and others issued a notice to thepetitioner on 25.4.2006, stating that the father of the secondrespondent executed a power of attorney authorizing the petitionerto alienate the property measuring 66.67 cents in VengambakkamVillage, and the property was an ancestral property, and the secondrespondent is entitled for a share, and apart from that, the saidpower was obtained by the petitioner by coercion and undueinfluence; that it was also further averred therein that a criminalcomplaint has also been given in that regard, and the power ofattorney originally executed in his favour, was also cancelled; that the said notice was replied by the petitioner; thatthereafter, a notice was served upon him by the first respondentBar Council stating that a complaint was given by the secondrespondent on 20.7.2006 for which the petitioner gave a detailedreply; but, no proceedings have been initiated thereon; thatinstead, a second notice was served upon him alleging that acomplaint was received from the second respondent on 8.8.2006 andthe disciplinary proceedings were to be initiated and calling forhis explanation; and that under such circumstances, the petitionerwas constrained to file this writ petition seeking to quash thesame.

Advancing the arguments on behalf of the petitioner, thelearned Counsel would submit that in the instant case, the entireproceedings initiated by the first respondent Bar Council, have gotto be quashed for two reasons; that firstly, in respect of theproceedings under Sec.35 of the Advocates Act, 1961, on a complaintgiven by a person, it should be first established that there wasrelationship of Advocate and client between the parties; that inthe case on hand, the second respondent, who was the complainanttherein, had no locus standi since there was no privity ofcontract, nor was there any relationship between the petitioner andthe second respondent; that secondly, even as per the complaint, the power of attorney was executed not only by the father of thesecond respondent Kannappa Pillai, but also by the brother of Kannappa Pillai namely Balu Pillai; that on the same facts, acriminal complaint was given before D1 Triplicane Police Station; but, no action was taken; that at that juncture, the secondrespondent approached this Court seeking for a direction; thataccordingly, a direction was given, pursuant to which a case cameto be registered in Crime No.510/2007; that the same is pendinginvestigation; that it was alleged in the complaint that there wascriminal intimidation, coercion and undue influence by which thepower of attorney had been obtained from the said Kannappa Pillaiand Balu Pillai; that the investigation is also pending; that inthe instant case, the Bar Council had no jurisdiction to proceedwith the matter, and hence, it has got to be quashed.

The Court heard the learned Counsel for the secondrespondent, according to whom, in the instant case, the saidKannappa Pillai was 90 years old and lacked in his vision; that thepetitioner, a practicing Advocate, had obtained the power of https://hcservices.ecourts.gov.in/hcservices/ attorney from his father Kannappa Pillai and the brother of Kannappa Pillai namely Balu Pillai, by exercising undue influenceand coercion on the strength of which he sold the property also; that on coming to know about the same, a complaint was given notonly to the police but also to the Bar Council; that not even anypart of the consideration has been paid to either Kannappa Pillaior Balu Pillai; that in the instant case, originally, the complaintgiven on 20.7.2006, was taken on file by the first respondent BarCouncil; that pursuant to the same, a notice has also been issuedto the petitioner; but, subsequently, it was found that thecomplaint was not in the proper format, and hence, the subsequentcomplaint was given in the format on 8.8.2006, pursuant to which anotice has been issued; that now, proceedings have been initiated; that merely because criminal proceedings are pending, there is nobar in law for the Bar Council to further proceed with the allegedmisconduct of the petitioner, who is a practicing Advocate, andunder such circumstances, the writ petition has got to bedismissed.

The Court paid its anxious consideration on the submissionsmade.

It is not in controversy that the petitioner herein, apracticing Advocate, has obtained a power of attorney from oneKannappa Pillai, the father of the second respondent and also thebrother of Kannappa Pillai namely Balu Pillai, pursuant to which healso sold the property. Now, the complaint has been given to the Bar Council alleging that the said power of attorney was obtainedby the petitioner from the father of the second respondent and BaluPillai by exercising undue influence and coercion. If the same isproved, it would go against the conduct of the petitioner as an Advocate. Apart from that, the entire property has also been soldpursuant to the power of attorney. According to the secondrespondent, not even any amount has been parted with. Under thecircumstances, further allegations have been made in that regard. While the petitioner is a practicing Advocate and such allegationsare made, there cannot be any bar for the Bar Council to proceedwith the enquiry.