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Article Published in the Express Magazine Dated
November 18,
2001
General Attorney : Rajiv K. Luthra
After an interim judgment of my case at court,
my lawyer charged me an exceptionally high bill,
which I could not accept. Hence, I decided to
change my lawyer. When I informed him of my plans,
he announced that he would not return the file as
he was entitled by law to hold the files till all
payments were made. Is that correct?
Sanjay Kaul, Patna
Section 171 of the Indian Contract Act (the “Act”)
indeed provides, that bankers, factors,
wharfingers, attorneys of a High Court and policy
brokers may, in the absence of a contract to the
contrary, retain, as a security for a general
balance of account, any goods bailed to them. But
the Hon´ble Supreme Court has held that files kept
by an advocate cannot amount to “goods bailed”.
The word “bailment” is defined in Section 148 of
the Act as the delivery of goods by one person to
another for some purpose, upon a contract that
they shall be returned or otherwise disposed of
according to the directions of the person
delivering them, when the purpose is accomplished.
In the case of litigation papers in the hands of
the advocate, there is neither delivery of goods
nor any contract that they shall be returned or
otherwise disposed of.
Files containing copies of the records can also
not be equated with the “goods” referred to in
Section 171 if the Act. “Goods” should have
marketability and the person to whom they are
bailed should be in a position to dispose of them
in consideration of money. There is no scope for
converting the case files into money, nor can they
be sold to any third party. Therefore, an advocate
has no lien in respect of litigation papers in his
keeping even where there is a dispute regarding
payment of his fees. The “professional
obligations” of a lawyer are distinguished from
the “business commitments” followed by the trading
community. Even if there is no lien on the
litigation papers of the client, an advocate is
not without remedies to realise the fee which he
is legitimately entitled to. It is within his
rights to deduct his fees from any money of the
client remaining in his hand at termination of
proceedings, but the rules do not provide him with
a lien over the litigation papers and files.
Advocates must conduct themselves at all times in
a manner befitting their status as a member of a
high and honourable profession. If they depart
from such standards, even in the context of
recovering their fee, and behave in a manner which
is not fair, reasonable and according to law, they
can be liable to disciplinary action. The Hon´ble
Supreme Court further has held, that the refusal
to return case files when demanded by the client
amounts to professional misconduct according to
the Advocate Act, 1961.
I had given a notice for marriage to a Marriage
Officer under the provisions of the Special
Marriage Act, but due to certain unforeseeable
reasons I have not been able to get the marriage
solemnised for almost six months ever since. Will
my earlier notice be valid even now?
Suresh Ganguly, Delhi
No, any notice given for marriage to a Marriage
Officer for solemnisation of a marriage shall not
be valid beyond three months of such notice.
Section 14 of the Special Marriage Act, 1954 (the
"Act") stipulates that, whenever a marriage is not
solemnised within three calendar months from the
date on which notice thereof has been given to the
Marriage Officer, as required by Section 5, no
Marriage Officer shall solemnize the marriage
until a new notice has been given in the manner
laid down in the said Act. In your case, the
proper remedy would be to move a fresh notice
under Section 5 of the Act.
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