Dismissed

Ramesh Kaumar Aggarwal v. Indian Bank

DRT20 Oct 2023MA/244/2023

Case brief

AI extract

What is this about?

Debts Recovery Tribunal dismissed the recall application filed due to the respondent's advocate's non-appearance owing to a strike. The Bench held that strike by advocates is illegal and cited multiple Supreme Court precedents dismissing the request for adjournment and granting the recall in toto. No proceedings were stayed.

What did the court decide?

Application for recall of orders dismissed. Bar Association's strike called in aid of arguments adjournment held insufficient. No cost imposed.

Ramesh Kaumar Aggarwal versus Indian Bank — Civil Procedure and Limitation | DRT (2023)

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DEBTS RECOVERY TRIBUNAL-2, CHANDIGARH

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ITEM NO.23

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MA/244/2023 SH. RAMESH KUMAR AGGARWAL AND OTHERS VS INDIAN BANK

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20.10.2023

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Present: Sh. Sagar Ratusariya Advocate for the applicants/defendants (through VC) None for the respondent bank

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This MA has been filed seeking recall of judgement dated 06.09.2023, including order dated 04.05.2023 and 04.10.2023. Heard.

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It was argued by the learned counsel for the applicants that defendant No. 2 had requested for an opportunity to file the rejoinder or in the alternative to file synopsis for the reason that the additional pleas had been raised in the replication against the settled law and to bring to the knowledge of this Tribunal, subsequent facts which were material for adjudication of the matter at hand but the case was reserved for pronouncement of order. One fails to understand how subsequent facts can be incorporated in the defence without there being any application etc. in this regard.

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It was further argued that on 04.09.2023 there was a call for strike by the DRT Bar Association and defendant No. 2 was unable to properly assist this Tribunal.

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Suspension of work/strike/boycott of the Courts by the advocates has no legal sanctity whatsoever, in view of the law laid down in the following authorities:

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(1) Hon'ble Apex Court in the matter of In Re: ‘Sanjiv Datta and Others Vs Unknown’ (1995) 3 SCC 619 , has inter alia observed as under:

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“Before parting with these contempt proceedings, we may voice a few words not by way of admonition but caution. Judges also belong to legal fraternity. Most of them have come from the profession and some of them have practised law for more years than they have administered it. Hence the anxiety to express the concern.

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MA/244/2023 SH RAMESH KUMAR AGGARWAL AND OTHERS Vs INDIAN BANK 2

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Of late, we have been coming across several instances which can only be described as unfortunate both for the legal profession and administration of justice. It becomes, therefore, our duty to bring it to the notice of the members of the profession that it is in their hands to improve the quality of the service they render both to the litigant public and to the Courts, and to brighten their image in the society. Some members of the profession have been adopting perceptibly casual approach to the practice of the profession as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings – many times even illegible and without personal check and verification, the non-payment of Court fees and process fees, the failure to remove office objections, the failure to take steps to serve the parties, et al. They do not realise the seriousness of these acts and omissions. They not only amount to the contempt of Court but do positive disservice to the litigants and create embarrassing situation in the Court leading to avoidable unpleasantness and delay in the disposal of the matters. This augurs ill for the health of our judicial system.

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The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his profession and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial system in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible. The casualness and indifference with which

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MA/244/2023 SH RAMESH KUMAR AGGARWAL AND OTHERS Vs INDIAN BANK 3

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some members practise the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the members of the profession to introspect and take the corrective steps in time and also spare the Courts the unpleasant duty. We say no more.”

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(2) The Apex Court again in the matter of IN RE: ‘Ajay Kumar Pandey, vs. Virendra Saran’, AIR 1998 SC 3299 , has inter alia held in para No.27 in the following terms:

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“Does the law give a lawyer, unsatisfied with the result of a case, any licence to permit himself the liberty of scandalising a Court by casting unwarranted imputations against the judge in discharge of his judicial functions? Does the lawyer enjoy any special immunity under the Contempt of Courts Act, where he is found to have committed a gross contempt of Court? The answer has to be an emphatic NO.

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Another very important aspect of the matter is also involved in this matter, wherein for accepting their demand to restore the jurisdiction of Police Station 'Bhaleri' which was changed after approval of the Hon'ble High-Court, the Bar Association of Sub-Divisional headquarters at Sardarshar has given the call of strike/work suspension in defiance of the law laid down by Hon'ble the Apex Court in number of judgments and that too as an opening and primary measure without resorting to the recourses available under the legal system and by ignoring the duty which the learned members of Bar owe towards the clients whose briefs they hold and also towards the Courts and the Institution as a whole, being the officers of the Court and also being the honourable members of the noble profession.

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It is now settled proposition of law that strike/boycott by advocates is per se illegal and unethical and it amounts to gross professional misconduct.”

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(3) On the issue of strike/boycott by the advocates, the Hon'ble Apex Court in the matter of ‘Mahabir Prasad Singh, vs. M/s. Jacks Aviation Pvt. Ltd.’, AIR 1999 SC 287 , while holding the

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strike/boycott by advocates illegal, has held in para Nos. 2, 16, 17 & 18 as under:

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“2. Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member thereof. High Courts are duty bound to insulate judicial functionaries within their territory from being demoralised due to such onslaughts by giving full protection to them to discharge their duties without fear. But unfortunately, this case reflects apathy on the part of the High Court in affording such protection to a judicial functionary who resisted, through legal means, a pressure strategy slammed on him in open Court.

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16. If any counsel does not want to appear in a particular Court, that too for justifiable reasons, professional decorum and etiquette require him to give up his engagement in that Court so that the party can engage another counsel. But retaining the brief of his client and at the same time abstaining from appearing in that Court, that too not on any particular day on account of some personal inconvenience of the counsel but as a permanent feature, is unprofessional as also unbecoming of the status of an advocate. No Court is obliged to adjourn a cause because of the strike call given by any Association of Advocates or a decision to boycott the Courts either in general or any particular Court. It is the solemn duty of every Court to proceed with the judicial business during Court hours. No Court should yield to pressure tactics or boycott calls or any kind of browbeating.

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17. A three-judge bench of this Court has reminded members of the legal profession in ‘Lt. Col. S. J. Chaudhary v. State (Delhi Administration)’, (1984) 1 SCC 722: (AIR 1984 SC 618), that it is the duty of every advocate who accepts brief to attend the trial and such duty cannot be overstressed. It was further reminded that “having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend. A lawyer is under obligation to do nothing that shall detract from the dignity of the Court, of which he is himself a sworn officer and assistant. He should at all times pay deferential respect to the Judge, and scrupulously observe the decorum of the Court room.

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18. Of course, it is not a unilateral affair. There is a reciprocal duty for the Court also to be courteous to the members of the Bar and

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to make every endeavour for maintaining and protecting the respect which members of the Bar are entitled to have from their clients as well as from the litigant public. Both the Bench and the Bar are the two inextricable wings of the judicial forum and therefore, the aforesaid mutual respect is sine qua non for the efficient functioning of the solemn work carried on in Courts of law. But that does not mean that any advocate or group of them can boycott the Courts or any particular Court and ask the Court to desist from discharging judicial functions. At any rate, no advocate can ask the Court to avoid a case on the ground that he does not want to appear in that Court.”

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(4) Hon'ble Delhi High Court in the matter of ‘ Dr. B. L. Wadehra, vs. State (NCT of Delhi) and others’, AIR 2000 Delhi 266 , has held the strike by the advocates to be illegal and unethical and has also held that the lawyer abstaining from appearing in Court is also guilty of professional misconduct.

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(5) Hon'ble Apex Court in the matter of ‘Koluttumottil Razak Versus State of Kerala’, (2000) 4 SCC 465 , having felt it the duty of the Court to look into the matter by themselves, proceeded to decide the appeal filed by the appellant against his conviction, who was languishing in jail for a very long time, by declining the request of the appellant for adjournment of the hearing of his appeal on the ground of non-appearance of advocates due to the call of strike given by the advocates.

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(6) Hon'ble Apex Court in the matter of ‘Ramon Services Pvt. Ltd., vs. Subash Kapoor and others’, AIR 2001 SC 207 , while considering the earlier judgments, has held that the strike/boycott by advocates is illegal and the Court is under no obligation either to wait or to adjourn the case on account of strike/boycott call given by the advocates. It has also been reiterated by Hon'ble Apex Court that an advocate has no right to stall the Court proceedings on the ground of decision of strike/boycott taken by the advocates. Hon'ble Apex Court in para No.28 of this judgment has also cautioned the defaulting Courts, that such Courts may be contributory to the contempt of Court. Para No. 28 reads as follows:

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“28. Though a matter of regret, yet it is a fact, that the Courts in the country have been contributory to the continuance of the strike on account of their action of sympathizing with the Bar and failing to discharge their legal obligations obviously under the threat of public frenzy and harassment by the striking advocates. I find myself in

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MA/244/2023 SH RAMESH KUMAR AGGARWAL AND OTHERS Vs INDIAN BANK 6

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agreement with the submission of Sh. M. N. Krishnamani, Senior Advocate that the Courts were sympathizing with Bar by not agreeing to dismiss the cases for default of appearance of the striking advocates. I have my reservations with the observations of Thomas, J. that the Courts had not been sympathizing with the Bar during the strikes or boycotts. Some Courts might have conducted the cases even during the strike or boycott periods or adjourned due to helplessness for not being in a position to decide the lis in the absence of the counsel but majority of the Courts in the country have been impliedly sympathizers by not rising to the occasion by taking positive stand for the preservation of the high traditions of law and for continued restoration of the confidence of the common man in the institution of judiciary. It is not too late even now for the Courts in the country to rise from the slumber and perform their duties without fear or favour particularly after the judgment of this Court in Mahabir Singh's case (1998 AIR SCW 3806: AIR 1999 SC 287) (supra). Inaction will surely contribute to the erosion of ethics and values in the legal profession. The defaulting Courts may also be contributory to the contempt of this Court.”

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(7) The law on the same lines has again been laid down by Hon'ble the Apex Court in the matter of ‘Ex-Capt. Harish Uppal, vs. Union of India and another’, AIR 2003 SC 739, and in the case of ‘Common Cause 'A' Registered Society vs. Union of India and others etc.’, AIR 2005 SC 4442.

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Given the legal position enunciated in the above judgments, this Tribunal is of the considered opinion that the non-appearance of the Advocates warrants to be ignored outrightly as justifying the same overtly or covertly even remotely would tantamount to nothing short of displaying cowardice and commission of the contempt of the Hon’ble Supreme Court by this Tribunal. It needs to be mentioned here that the menace of strike/boycott of the Courts by the Advocates, cannot be condoned in the guise of interests of the parties/justice. Great Sardar Patel stated: ‘Problems if not faced squarely, those are going to take heavy revenge in the times to come.’

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It was further argued that the matter had not been fixed for arguments. It cannot be said that the matter was not fixed for arguments as after admission or denial of the documents, the next

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step was hearing of arguments advanced by the parties and deciding the OA.

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If any additional plea is taken in the replication, the same cannot be taken cognizance of by the Tribunal and the same was required to be ignored by the Tribunal. No request was made for grant of adjournment as has been reflected in the order and had even the request been made, this Tribunal was not bound to accept the same. No party can file replication/rejoinder as a matter of right or on its own. There was no order to file rejoinder to the replication.

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It was further argued that all the contentions raised in the written statement were not addressed. When the arguments were advanced, the only points which were raised in the arguments, those were to be considered.

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This MA is in the shape of an appeal. The applicants should have preferred an appeal instead of treating this Tribunal as an Appellate Tribunal. Therefore, this MA warrants to be dismissed summarily. Even otherwise, no case is made out for review or recall of the orders in question. So, this MA is dismissed hereby. The facts and circumstances of the case warrant that this MA should be dismissed with exemplary cost but taking a lenient view in the hope and belief that this type of misuse of the process of law would not be repeated, no exemplary cost is imposed. File be consigned to the record room after due compliance.

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Pronounced in the open Tribunal

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(M.M. Dhonchak) Presiding Officer DRT-2, Chandigarh

Ramesh Kaumar Aggarwal v. Indian Bank

Case brief

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Ramesh Kaumar Aggarwal v. Indian Bank

Case brief

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