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2009 DIGILAW 593 (JK)

Ch. Shabbir Ahmed Salaria v. State

2009-11-26

J.P.SINGH

body2009
1. Chowdhary Shabbir Ahmed Salaria, a Senior Advocate of this Court filed a Civil Suit for recovery of Rs. 4.00 lac, which included Rs.2,90,900/- on account of his professional fee for the work he had done for the State in his capacity as its Advocate General, Rs.1,01815, the interest due thereon from July 01, 1998 to May 31, 2001, the telephone charges and rental for his accommodation, against the State of Jammu and Kashmir, when Notice served under Section 80 CPC did not yield any result. 2. Responding to the Suit, the State, while admitting the Appellant to have worked as Advocate General, denied its liability to make payment for his Fee Bills, barring, however, 65 Bills payment whereof was stated to have been made, after the filing of Suit on the plea that the appellant had not furnished requisite documents i.e. the copies of the proceedings of the cases where he had appeared for it to discharge his professional obligations, alongwith the Bills. 3. Learned Second Additional District Judge, Jammu, the trial Court raised following eleven issues to resolve the controversy, arising out of the pleadings of the parties:- (1) Whether the suit is not maintainable in the present form? OPD (2) Whether suit is liable to be dismissed as no cause of action has accrued to the plaintiff? OPD (3) Whether the court fee has not been paid property, if so what is the proper court fees? OPD (4) Whether the suit is not maintainable due to non-joinder and mis-joinder of parties? OPD (5) Whether the notice under section 80 CPC served on the defendants is not legal? OPD (6) Whether the claim for payment of telephone bills referred to in Para 7 & 9 of the plaint and interest thereon cannot be decreed as the defendant has written to the office of Advocate General to pay the same? OPD (7) Whether the claim for payment of Rs.10,000/- on account of house rent claimed in Para 11 of the plaint cannot be decreed as the defendant has directed the Advocate General to release the payment of the house rent to the plaintiff? OPD (8) Whether the plaintiff as Advocate General raised and sent the suit bills claimed in Annexure-B to plaint for payment? OPD (8) Whether the plaintiff as Advocate General raised and sent the suit bills claimed in Annexure-B to plaint for payment? OPP (9) Whether the defendant has not received the fee bill other than the 65 fee bills mentioned in Para 5 of the written statement of which the defendant has not made payment to the plaintiff. OPD (10) Whether the plaintiff is entitled to interest at the rate of 12% p.a. on the principal sum of Rs.2,90,000/- from 1.7.98 to the date of realization? OPP (11) Relief. 4. After evaluating the evidence and considering the documents produced by the parties during the trial of the Suit, the trial Court came to the conclusion that the Central issue between the parties was, lack of communication between the appellant and the respondent-State, in that, neither the appointment of the appellant as Advocate General of the State, nor the rate of fee payable to him for his professional work, was in dispute. 5. Dealing with the respondents plea that appellants omission to furnish to the respondent, the copies of the proceedings where he had appeared for it, would disentitle him to the fee claimed in the Suit, barring the one which stood released in his favour, and that the appellant had not sent certain bills to the respondent, the trial Court, came to the conclusion that the Second originals of the bills, annexed with the plaint, had been duly proved to have been sent to the respondent, by the appellant. These Bills are marked as EXPW-SA/3 to EXPW-SA 171. 6. According to the trial Court there could have been no other mechanism with the appellant to prove that he had represented the State Government in various Courts including the Human Rights Commission and the Honble Supreme Court of India, except by floating the Bills EXPW-SA/3 to EXPW-SA/171, as was done by him in the case. 7. The trial Court was of the further view that even if it were to be assumed that any bill/Court proceedings, had not been received by the respondent, that would not mean that the appellants claim in respect of the Bill(s) was not sustainable. 8. Finding no merit in the preliminary objections inter alia regarding the maintainability of the Suit, raised by the respondent, the trial Court decided issue Nos. 1 to 5, in favour of the appellant and against the State-respondent. 9. Issue Nos. 8. Finding no merit in the preliminary objections inter alia regarding the maintainability of the Suit, raised by the respondent, the trial Court decided issue Nos. 1 to 5, in favour of the appellant and against the State-respondent. 9. Issue Nos. 6 & 7 regarding appellants claim to telephone bills and on account of residential accommodation, too were decided in favour of the appellant. 10. Despite recording positive finding on issue No.8 that the appellant had succeeded in proving sending of Bills, seeking payment of his professional fee to the respondent, and considering the release of payment covered by 65 bills in favour of the appellant during the pendency of the Suit, the trial Court, however, found the appellant entitled to fee for 62 cases only and accordingly decided issue No.8, saying that the appellant was entitled to payment of 71,300/- as his professional fee for 62 cases at the rate of Rs.1150/- per case. A total amount of Rs.94,712.25 was accordingly allowed to the appellant which included Rs.1691/- and Rs.1721.25 on account of telephone bills and Rs.10,000/- on account of house rent for two months. 11. While decreeing the appellants Suit, as aforesaid, he was, allowed interest @ 4% per annum from the date of filing of the Suit till its realisation, as against 12% per annum claimed in the Suit. 12. Aggrieved by the rejection of part of his Claim as projected in the Suit, the appellant has filed this Appeal, questioning the trial Courts finding on issue Nos.8 & 10 seeking a decree for the amount and interest claimed in the Suit, by modification of the trial Courts decree. 13. According to the appellant, who appeared in person to argue his appeal, the trial Court had erred in recording its finding that the plaintiffs claim of fee was partly genuine, in that, the finding, besides being contradictory, was against the facts, admitted by the respondents. 14. Finding of the trial Court that fee for only 62 cases was payable to the appellant, is questioned on the ground that after having found that the fee of only 75 cases had been paid by the State to the appellant against his claim of fee for 169 cases, the appellant was entitled to be paid for remaining 94 cases and not for 62 cases, as held by the trial Court. Rs.61,500/- as fee for remaining 32 cases is, thus, urged to have been wrongly denied to him by the trial Court. 15. Another grievance projected by the appellant is that his Claim of interest on the amount due, as his professional fee, which was legally payable to him, had been erroneously denied by the trial Court and that too without adverting to the appellants entitlement or otherwise, to it. 16. Appellant has claimed an amount of Rs.39,550/- too as the balance payment of the bills which had been paid to him in part, and which claim too is stated to have been erroneously denied to him by the trial Court for no reasons at all. 17. Finding of the trial Court allowing 4% interest on the Suit amount, has been questioned saying that he was entitled, under law, to interest @ 12% per annum on the amount due, at the time of the Suit and pendente lite. 18. Mrs. Hakim, learned Deputy Advocate General, appearing for the respondent-State, while denying the appellants entitlement to Rs.39,550/-, claimed as balance payment of the bills which were paid only in part, was, however, unable to justify the denial of fee to the appellant for remaining 32 cases on any count whatsoever. As regards the appellants claim to interest on the Suit amount, learned State Counsel submitted that having been paid fee for 65 cases, during the pendency of the Suit, the appellant was not entitled to any interest on the amount claimed in the Suit. 19. Justifying the judgment of the trial Court and refuting the appellants claim to interest pendente lite and on the suit amount at the rate of 12% per annum, learned Counsel placed reliance on the provisions of Section 34 of the Code of Civil Procedure to support her submission. 20. I have considered the submissions made by the appellant and the learned Deputy Advocate General in the light of the trial Court records. 21. The first issue which falls for determination in this Appeal, is to the entitlement or otherwise of the appellant to his Professional Fee pertaining to remaining 32 cases. 22. Before dealing with the issue, reference needs to be made to the finding of the trial Court on issue No.8, which reads thus: "On Evaluation, the evidence reveals that the issue is of lack of communication between plaintiff and the Defendant. 22. Before dealing with the issue, reference needs to be made to the finding of the trial Court on issue No.8, which reads thus: "On Evaluation, the evidence reveals that the issue is of lack of communication between plaintiff and the Defendant. The appointment of plaintiff as Advocate General of State is not disputed. Nor is the quantum of fees fixed per case, an issue of debate, because guide lines of fees and other service conditions are prescribed in Govt order No. 385-GR (LD) A of 1990 dated 18-4-1990. Only bone of contention is that plaintiff has failed to furnish the Court proceedings and in certain cases bills also to defendants. The duplicate bills, in respect of which payment is sought by plaintiff are annexed to plaint and stand exhibited as EXPW SA/3 to EXPW/SA/171. Defendants have not countered or refused these bills, which stand duly proved. There cannot be any other mechanism for the plaintiff to show that he has represented the Govt in various Courts including the Human Rights Commission. Even if we assume that any bill Court proceeding has not been received by defendant that would not mean that plaintiffs claim in respect of that bill is not sustainable". After holding as above, the trial Court denied payment of 32 Cases to the appellant saying that: "Plaintiff has claimed payment in respect of 169 cases, a list of which is Annexure-B to the plaint. That list read with exhibits EXPW-SA/3 to EXPW-SA/171, do show that plaintiffs Claim is partly genuine. Partly because, in certain cases payments have been made already and in certain other cases, bills have neither been placed on record, nor furnished to defendants. So after considering all the facts and evidence cumulatively, what is discernable is that, plaintiffs claim in respect of the cases, the detail of which is given below have been forwarded to defendants, the duplicate copies of which form a part of record as exhibits EXPA-SA/3 to EXPW-SA/171". 23. Perusal of the findings of the trial Court, extracted above, separately, clearly demonstrates that the finding of the Court, appearing in the second part of his discussion on issue No.8, runs contrary to its finding on the issue, as it so appears in the first part of its discussion, holding the appellant to have proved the dispatch of fee bills for 169 cases and his entitlement to the fee claimed therein. 24. 24. The finding of the Court that the appellants case was partly genuine because in certain cases payment had already been made, and in other cases, bills had neither been placed on records nor furnished to the defendants, is both, contrary to the facts on records, as also to the finding of the Court in earlier part of its discussion on issue No.8. 25. The later portion of the finding of the trial Court on issue No.8 "that the appellants Claim is partly genuine. Partly because, in certain cases, payments have been made already, and in certain other cases, bills have neither been placed on record, nor furnished to the defendant, so after considering all the facts and evidence, cumulatively, what is discernable, is that, plaintiffs claim in respect of cases, the detail of which is given below have been forwarded to the defendant, the duplicate copies of which, forms part of record, as exhibits EXPW-SA/3 to EXPW-SA/171", is unsustainable, in that, the whole claim of the appellant in the suit was based on the Bills marked as EXPW-SA/3 to EXPW-SA/171. 26. Deducting 75 cases, payment where-for, is stated to have been made to the appellant vide Order No. 2283 of 2001 dated 10-9-2001 and Govt. Order No. 97/436 dated 30th August, 2001, the appellant, in terms of the findings of the Court becomes entitled to the payment of fee for 94 cases, in that, the details of the Cases where the entries are stated to have been made more than once, is neither forthcoming from the records nor proved by the respondent. 27. The findings of the trial Court on issue No. 8, therefore, needs to be modified by holding the appellant entitled to fee for remaining 94 cases @ Rs 1150/- per case, barring however, 13 Bills pertaining to appellants appearance in cases in the Honble Supreme Court and before the National Human Rights Commission, for which his fee was Rs 2000/- per appearance and 12 Bills where instead of Rs 2300/-, he was paid only Rs 1150/, the aggregate whereof comes to Rs 39,800/-. 28. 28. The finding of the trial Court on issue No.8, is accordingly modified, holding the appellant entitled to fee for 94 cases amounting to Rs 1,19,150/- ( i.e Rs 79,350/- for 69 cases @ Rs 1150/- per case, plus Rs 39,800/-, remaining fee for 13 & 12 cases respectively @ Rs 2000/- and Rs 1150/- per case. 29. Now coming to the next issue as to whether the trial Court was right in refusing the appellants Claim to interest on the suit amount, and whether interest allowed @ 4% per annum pendente lite and until realization of the decreetal amount, was justified, suffice it would be to say, that the findings of the trial Court on the issue, may not be justified for the following reasons:- The trial Court has not given any reason as to whether or not the appellant was entitled to interest, claimed in the Suit. It has on the other hand returned its finding only on the appellants entitlement or otherwise to interest pendente lite and until realization, which course is bad in law, in that, issue No.10 could not have been decided against the appellant by the trial Court without returning finding one way or the other as to appellants entitlement to interest on the suit amount. The finding of the trial Court that the appellant was entitled to interest pendente lite and until realization @ 4% per annum only, because the delay in the payment was attributable to both the parties, is neither supported by the facts on records nor is otherwise justified in view of the categorical finding of the trial Court on issue No.8 that the appellant had done all that it was required to do, in making his claim to the State for payment of his professional fee, and the respondent was liable to make payment therefor to him as the appellants claim reflected in the bills, had not been disputed by the respondent which had contested the release of the amount in favour of the appellant, only on the ground that he had failed to supply the respondent, the copies of the proceedings in the cases, fee in respect whereof had been claimed. 30. The appellant has thus, been denied interest on the amount which the respondent was liable to pay to him, for no reasons at all. 30. The appellant has thus, been denied interest on the amount which the respondent was liable to pay to him, for no reasons at all. The respondent had with-held the amount payable to the appellant as his professional fee, for the work he had done for it and in this view of the matter, the appellant is held entitled to interest for the last three years, immediately preceding the suit, on the amount to which he has held entitled to, which alone may be recoverable, in view of the law of Limitation. 31. Perusal of the Minutes of the trial Court proceedings, do not indicate the appellant to be in any way responsible for the delay, which has resulted in the disposal of the case, which may dis-entitle him to payment of interest at any reduced rate. The judgment of the trial Court, allowing him interest less than the minimum rate of interest prescribed in Section 34 of the Code of Civil Procedure, cannot thus, be justified. 32. As the relationship between the respondent and the appellant had not arisen out of any commercial transaction, as indicated in Explanation-II to the proviso appended to Section 34 of the Code of Civil Procedure, so the appellant is entitled to interest @ 6% per annum. 33. Accordingly, modifying findings of the trial Court on issue Nos 8 & 10, the appellant is, held entitled to interest @ 6% per annum on Rs.1,19,150/- , the amount payable to him, as his fee for 94 cases pendente lite and until realization, besides to three years interest on the aforesaid amount. 34. For all what has been said above, the appellants Appeal, therefore, succeeds and is, accordingly, allowed on the basis of the modified findings on Issue Nos.8 and 10. The Judgment of the trial Court shall stand modified and the appellants Suit decreed for an amount of Rs.1,56,423/- ( i.e. 1,19,150/- as fee for 94 cases; Rs 10,000/- as House Rent 1691/- & 1721/- as Telephone Bills and Rs 23,861/- as three years interest thereon) along with interest pendente lite and until realization @ 6% per annum, with costs throughout. Registrar (Judicial) to draw decree accordingly.