SC on Disciplinary Proceedings against Advocates
December 20, 2017
Kaushal Kishore Awasthi v. Balwant Singh Thakur
Date of Judgment: December 11, 2017
In this recent case the Supreme Court was confronted with the issue of professional
misconduct under Section 35 of the Advocates Act, 1961. In view of the facts, the Court held
that if the Advocate was not professionally engaged then disciplinary proceedings cannot be
initiated against him.
In the case, the Appellant was held guilty of alleged professional misconduct by the State Bar
Council and subsequently by Bar Council of India. The Appellant’s license to practice was
also suspended. Aggrieved by this the Appellant approached the Supreme Court.
Brief Facts: The complainant had engaged the Appellant as an advocate pertaining to family
dispute in respect of a property wherein the complainant had filed a suit for declaring
impugned sale deed as null and void as it was prepared fraudulently and without the
complainant’s consent. Later on the parties in the suit settled the matter as they agreed for
declaring the sale deed as ineffective and requested the Court for division of the property.
The complainant later on decided to sell his share of land and for the purpose of registration
of sale deed, he produced the earlier sale deed before the appropriate authority and at that
stage the Appellant produced objection letter against the proposed sale deed and objected
registration of the said sale deed on the ground that the complainant did not have full
ownership of the proposed land. The Appellant as per the facts had objected on registration of
sale deed as the complainant had not cleared his debt.
Complainant’s allegation- The complainant alleged that the appellant was neither an
interested party in the said sale deed or in the proposed sale of the land nor was he authorised
by any party to raise objections. He contended that this act of the appellant was professional
misconduct.
Appellant- In appeal the Appellant contended that even if the allegations contained in the
complaint are taken to be correct on its face value, these do not amount to committing any
misconduct as per the provisions of the Advocates Act and Rules framed thereunder. the act
of the appellant was not as an Advocate and, therefore, could not amount to committing
misconduct.
Bench’s Verdict
The Supreme Court in the case allowed the Appeal and set aside the Bar Council of India’s
order and made the following observations in the case:
The Court in the case made reference to Rule 22 under Chapter II of the Standards
of Professional Conduct and Etiquette framed by the BCI which debars an
Advocate from directly or indirectly making a bid for or purchase either in his own
name or in other’s name for his own benefit or for the benefit of any other person
any property sold in the execution of a decree or order in any suit, appeal or other
proceedings in which he was in any way professionally engaged. The Court also
made reference to Section 35 of the Advocates Act, 1961, as per which
punishment can be awarded to an Advocate if he is found guilty of professional or
other misconduct. In view of the aforesaid provisions, the Supreme Court in
context of the instant case observed that the complainant was selling the property
to the intending buyer which was an arrangement between them unconnected with
any legal proceedings.
That the said property was not being sold in execution of any decree, in which
proceedings the appellant was engaged.
That the complainant intended to sell the property in question when he found
himself in need of money. It is this sale which the appellant tried to interdict. He
was not doing so in the capacity of an Advocate. As per him, the complainant was
not authorised to sell the property without repaying his debt. Whether the appellant
was right in this submission or not, is not relevant. What is relevant is that this act
has nothing to do with the professional conduct of the appellant.
