Case Commentory

On 

B. Sunitha v. The State of Telengana & anr

By

Debajyoti Saha, Law Student, Online Intern@ LawOF


Recently, I came across a case[1] where the quantum of advocate’s fees has been challenged in the Hon’ble Supreme Court of India. Now-a-days the advocate’s fees is increasing exponentially. The facts of the case were the appellant filed for compensation in the Motor Vehicles Claims Tribunal for the death of her husband. She got the compensation. She hired an advocate who helped him in getting the same. It was agreed between the appellant and the advocate that the fees for his services would depend on the decretal amount. She gave around 10 lakhs as fees to the advocate for his professional conduct. But later on the advocate made the appellant sign a cheque of 3 lakhs despite of the opposition by the appellant. The appellant did not have sufficient funds in her account, hence, she refused. Again the advocate asked for 16% of the decretal amount. The cheque got bounced and the advocate filed complaint in the High Court of Telangana under Section 138 of the Negotiable Instruments Act, 1881.

In the High Court, the advocate argued that he had to engage services of other senior advocates and paid huge amount for their services at various courts including the Supreme Court. The appellant argued that the debt is not legally enforceable. The signature of the appellant was taken under undue influence. The advocate is in fiduciary relationship with the client. But he took the advantage of the inability of the client to pay the fees. The fee claimed by the respondent was against the A.P. Adovcates’ Fee Rules, 2010 of Subordinate Courts.  The claim of the respondent was against ethics and public policy and hit by Section 23 of the Contract Act.

But the High Court termed the above rules as mere guidance and stated that they is no statutory cap mentioned in the fees charged by the advocates, thereby, ruled in favour of the advocate. After that, the client went to Apex Court under the Article 136 of the Constitution of India, 1950 i.e. Special Leave Petition. The Hon’ble Court relied on precedents to come to the inference that no presumption could arise merely by issuance of a cheque that amount stipulated in the cheque was payable towards fee.  In absence of independent proof, issuance of cheque could not furnish cause of action under Section 138 of the Act in the context of an advocate or client. It held that making the fees conditional on the success of the case is undermining the status of the legal profession. Mere issuance of cheque by the client may not debar him from contesting the liability.  If liability is disputed, the advocate has to independently prove the contract.

Rule 20 of Part VI, Chapter II, Section II of the Standard of Professional Conduct and Etiquette reads as follows :

An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof.”

It emphasized on 131st Law Commission Report, 1988 in regards to the role of the legal profession in strengthening the system of administration of justice. Article 39A of the Constitution of India states about the fact of access to justice by all people. The system of justice must be affordable enough for all the people. Fees must not be the barrier in the same.

According to the author, the judgement of the Apex Court is apt. It is necessary to put a cap on the fees on the advocate if the Courts feel that the same exorbitant. The condition of the clients must be taken into account before imposing any kind of hefty fees on them. The “parens patriae” principle of the Government must not get defeated by the above. As guardian of the society, the Government has to play a huge role in protecting the interests of the clients.

 

[1] B. Sunitha v. The State of Telengana & anr., criminal appeal no. 2068   of 2017

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