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2012 DIGILAW 1473 (BOM)

Fulchand Damaji Orke v. State of Maharashtra

2012-08-06

M.T.JOSHI, S.C.DHARMADHIKARI

body2012
JUDGMENT M. T. JOSHI, J. The facts emerging from the present application present the tragic and squalid affairs of the activities of some of the lawyers scaling down to lowest level in Land Acquisition Compensation Cases. 2. The original Writ Petition was disposed of as withdrawn by the original petitioner Fulchand Orke on 10th April, 2012. The present application is filed by the Manager of the State Bank of India, Branch: Girad, Tahsil Samudrapur, District: Wardha who is original respondent no.3 praying for the following reliefs. i) Direct the Petitioner to restore the amount of Rs. 13,47,000.00 to Savings Account No. 31568872806 forthwith in the interest of justice. ii) Take appropriate action against the Petitioner and his Advocates named in para 4 of the application for intentionally misinterpreting the orders for unlawful gains. 3. Out of those reliefs, the prayer clause (i) has become in fructuous since the learned counsel for the applicant Mr. Anil kumar submitted that in view of the directions issued by this Court during the pendency of the present application, the amount is already re-deposited with the Bank by the petitioner. In the circumstances, we are now concerned with the unpleasant act of dealing with the prayer clause (ii). 4. The facts in the Writ Petition as well as in the present application reveal that there is a contest between the original petitioner Fulchand Damaji Orke and original respondents 4 to 6 over the right and title of the agricultural land bearing Kh. Nos. 22 and 227 of the village Faridpur which was acquired by the State for Sirsinala Project. 5. From the few and incomplete facts those are placed in the Writ Petition, it can be gathered that while petitioner Fulchand Orke was claiming the amount of compensation awarded by the Reference Court on the basis of a 'Will' claimed to have been executed by his mother Smt. Bayabai, respondents 4 to 6 claimed the compensation on the basis of the 'sale-deed' said to have been executed by the deceased father of the petitioner Fulchand Orke in favour of their deceased father. 6. It appears that certain civil proceedings as well as succession proceedings were started by these contestants. 6. It appears that certain civil proceedings as well as succession proceedings were started by these contestants. On the strength of the succession certificate, respondents 4 to 6 had applied for withdrawal of the compensation amount which was deposited by the Court with the present applicant i.e. original respondent no.3 State Bank of India. At that time, it was found that on the basis of certain applications filed by the original petitioner Fulchand Orke, already permission was granted by the Civil Judge, Sr. Dn., Wardha to withdraw the money kept in F.R.D. He eventually transferred the same in his own Savings Account on 30th December, 2010. 7. In the circumstances, original respondents 4 to 6 moved an application for review of the earlier order allowing the original Petitioner Fulchand Orke to withdraw the amount and to direct the petitioner Fulchand Orke as well as his counsel to re-deposit the amount as, according to respondents 4 to 6, their counsel was also instrumental in withdrawing the money. 8. In the circumstances, the learned Civil Judge, Sr. Dn, Wardha issued notices to the parties and also by granting stay to the further operation of the Savings Bank Account of the petitioner, issued directions to the respondent no. 3 Bank i.e. the present applicant that until further orders the Savings Bank Account of the petitioner Fulchand Orke shall be locked. 9. In view of the above fact, the original petitioner Fulchand Orke filed the present Writ Petition No. 1138/2012 for seeking the following reliefs. i) Quash and set aside letter dated 14.12.2011 issued by Respondent no. 3- i.e. State Bank of India, Branch Girad, at (Annexure - III); ii) Stay the proceedings of Review Application No. 21/2010 filed by the respondent Nos. 4 to 6 before Civil Judge, Senior Division, Wardha during pendency of present petition. iii) Grant permission to the petitioner to operate the Bank Account, in respondent No. 3 - i.e. State Bank of India, Branch Girad.” 10. Petitioner's counsel at Nagpur Mr. S.K. Sable prayed for ad interim relief. In the circumstances, the Division Bench of this Court on 12th March, 2012 directed for issuance of notices before admission returnable on 26th March, 2012. In the meanwhile, ad interim reliefin terms of prayer clause (ii) above i.e. to the extent of stay to the proceedings on Review Application, was granted. Thereafter, Advocate Mr. In the circumstances, the Division Bench of this Court on 12th March, 2012 directed for issuance of notices before admission returnable on 26th March, 2012. In the meanwhile, ad interim reliefin terms of prayer clause (ii) above i.e. to the extent of stay to the proceedings on Review Application, was granted. Thereafter, Advocate Mr. S.K. Sable filed a pursis under the signature of the petitioner Fulchand Orke on 9th April, 2012 before the notices could be served on the respondents. By the pursis, it was communicated to this Court that since the petitioner has filed the present Writ Petition for operating the Bank Account and "The Manager allowed the petitioner to operate the Bank Account", the petitioner wanted to withdraw the Writ Petition. In the circumstances, the Division Bench of this Court on 10th April, 2012 allowed the withdrawal of the writ petition. 11. In this state of affairs, the present application is filed by the original respondent no.3- State Bank of India revealing the sorry state of affairs as under:- Acting on the order of the Civil Judge, Sr. Dn., Wardha the Bank had withheld release of the money from the Savings Bank Account of the petitioner. On 17th March, 2012 at about 12.00 in the noon Advocate Mr. S.V Kale of Wardha and Advocate Mr. S.K. Sable of Nagpur along with the petitioner Fulchand Orke and the bailiff of Tahsil Court of Samudrapur came to his Bank premises. Copy of the Writ Petition and interim order was served upon the Branch Manager and all of them collectively called the Branch Manager to release payment forthwith as, according to them, this Court has stayed the execution and operation of the order of the Civil Judge, Sr. Dn., Wardha. At that time, the Branch Manager requested for some time to seek legal opinion. However, both the advocates pressurized the Branch Manager and threatened that if the account is not permitted to be operated on the same day, the Branch Manager would be hauled for committing contempt of the order of the Court and may be even sent to jail. The Branch Manager was unable to understand the order. He, therefore, made a phone call to the Law Officer of the Bank of Nagpur - Ms. Annapurani Venkateshan. The Branch Manager was unable to understand the order. He, therefore, made a phone call to the Law Officer of the Bank of Nagpur - Ms. Annapurani Venkateshan. The Law Officer was unable to give any opinion on the ground that unless the documents were read by her, she would not be able to make any comments. The petitioner and his Advocate, however, pressurized the Branch Manager to seek verbal opinion at instant. In the circumstances, the Branch Manager under the threat of action for contempt of court sought oral opinion. Thereupon, the law officer asked the Branch Manager to read the order. At that time, according to the Branch Manager, Advocate Mr. S.K. Sable took over his phone and started reading the order and stated that ad interim relief in terms of prayer clause (ii) is granted. However, at that time in stead of reading the contents of the prayer clause (ii), Advocate Mr. S.K. Sable read the prayer clause (iii) as prayer clause (ii). The Branch Manager bona fide believed whatever the Advocate Mr. S.K. Sable was stating to the Law Officer. Ultimately, the Law Officer upon hearing the order from the Advocate Mr. S.K. Sable, orally opined that it appeared that this Court has permitted the petitioner to operate the account and, therefore, the Branch Manager should take appropriate decision. Advocate Mr. S.K. Sable thereafter assured the Branch Manager that the order as understood by the Law Officer is 100% correct and again threatened that the Branch Manager would commit contempt of court order if he did not permit to operate the account. He also assured that in case the order is complied with he would withdraw the petition as against the Bank who is respondent no.3 in the writ petition. Advocate Mr. S.K. Sable even prepared a letter addressed to the Branch Manager to this effect. 12. The copy of the said letter addressed to the Branch Manager is annexed to the present application at Annexure-II. Thereafter, the petitioner was allowed in presence of his Advocate to withdraw some of the amount and thereafter i.e. on 17th March, 2012, 26th March, 2012 and 27th April, 2012. Thereafter, on 11th April, 2012 the Branch Manager contacted the Law Officer in order to find out as to whether the petitioner has deleted the name of the Bank from the array of the respondents. Thereafter, on 11th April, 2012 the Branch Manager contacted the Law Officer in order to find out as to whether the petitioner has deleted the name of the Bank from the array of the respondents. On that day, it was found that the petitioner has already withdrawn the writ petition itself vide Pursis dated 10th April, 2012 as detailed supra. It was also at that point found that while stay was granted only to the further hearing of the Review Application before the Civil Judge, Sr. Dn., Wardha, Advocates of the petitioner, by misrepresenting the facts, had cheated the Bank and were able to withdraw the substantial amount. It was further submitted that the Branch Manager was not aware of the legal procedure. He was busy in closing year being the month of March. The Advocates for the petitioner, under the threat of action under the Contempt of Court and by making false representation to the Law Officer, misinterpreted the orders of this Court. In the circumstances, by the present application it was prayed that the petitioner be directed to restore the amount and also to take appropriate action against the petitioner and his advocates. As already pointed out, the amount is now returned by the petitioner. 13. Both the advocates filed their affidavits. The gist is in the nature of passing the buck reminding a bibilical statement "before the cock crows, thou will deny me thrice". Both the advocates admitted that they accompanied the petitioner and bailiff for service of the copy of the writ petition as well as the orders of this Court on the Bank. While Advocate Mr. S.K. Sable emphasized that he did not take any active part in insisting the Branch Manager for permission to withdraw the amount by making misrepresentation of the facts, Advocate Mr. S.V. Kale, on the other hand in his affidavit dated 27th June, 2012, blames Advocate Mr. S.K. Sable. He swears that he only accompanied the petitioner and Advocate Mr. S.K. Sable to the Bank but was not concerned in any way. He empathetically swears at page 2 of the Affidavit dated 27th June, 2012. "------Advocate Mr. S.K. Sable is an advocate of Fulchand Orke. I am not concerned at all in this writ petition." He claims that he merely accompanied Advocate Mr. S.K. Sable and the petitioner to the Bank. Thereafter, Advocate Mr. He empathetically swears at page 2 of the Affidavit dated 27th June, 2012. "------Advocate Mr. S.K. Sable is an advocate of Fulchand Orke. I am not concerned at all in this writ petition." He claims that he merely accompanied Advocate Mr. S.K. Sable and the petitioner to the Bank. Thereafter, Advocate Mr. S.K. Sable talked over the phone from the Bank to the Law Officer and thereafter the permission to withdraw the amount was granted by the Law Officer. 14. Advocate Mr. Suresh Khemraj Sable, in his affidavit dated 18th June, 2012 puts entire blame in the episode on Advocate Mr. S.V. Kale. He swears that on 13.3.2012 Advocate Mr. S.V. Kale informed him that though the Bank Authorities were apprised about the order passed by this Court, the Authorities had not given proper treatment to the petitioner and Advocate Mr. S.V. Kale and treated them as if they were criminals. Thereafter, Advocate Mr. S.K. Sable obtained Hamdast from the Registry of this Court on 17.3.2012 and asked the petitioner to serve the same on the Branch Manager. The Petitioner was, however, apprehensive. Therefore, Advocate Mr. S.K. Sable talked with the local Advocate (Advocate Mr. S.V Kale) and explained him the procedure to serve notice on the Bank. Advocate Mr. S.V. Kale, however, requested Advocate Mr. S.K. Sable to come personally to do the needful. Therefore, he along with the petitioner and Advocate Mr. S.V. Kale went to the Bank to serve Hamdast on the Branch manager. The Branch Manager, however, humiliated Advocate Mr. S.K. Sable, Advocate Mr. S.V. Kale and the petitioner. He directed them to wait outside the premises of the Branch. After about ½ hours the Branch Manager called them in his office and acknowledged the Hamdast. The Branch Manager himself requested the Advocate for deleting the Bank as respondent from the writ petition. Advocate Mr. S.K. Sable told him that the Bank was merely a formal party but the Branch Manager insisted to give a letter to that effect to satisfy his superiors. Therefore, ultimately the Branch Manager obtained necessary draft of the letter (Annexure-II) on the phone from the Law Officer and instructed the Advocate to write accordingly. In pursuance of the same, Advocate Mr. S.K. Sable wrote the letter. Thereafter, the petitioner informed him that he has withdrawn the amount in three installments. Therefore, ultimately the Branch Manager obtained necessary draft of the letter (Annexure-II) on the phone from the Law Officer and instructed the Advocate to write accordingly. In pursuance of the same, Advocate Mr. S.K. Sable wrote the letter. Thereafter, the petitioner informed him that he has withdrawn the amount in three installments. Lastly, he submits "Whatever acts and things I have done on the instruction of the petitioner and the conducting local Advocate there was no ill motive or intention to deceive or to cheat to the Hon'ble Court, all to the other authorities. " 15. From the affidavits of both the advocates, it is, thus, clear that while this Court has merely granted stay to the further hearing in the Review Application, these two Advocates accompanied the petitioner to the Bank for service of the said writ. The Branch Manager could not have interpreted on his own the order as permission to withdraw the amount in the teeth of granting ad interim relief only in terms of prayer clause (ii). The very act of the Petitioner and his advocate in withdrawing the writ petition on 10th April, 2012 by making a statement that since the Bank has allowed to operate the account nothing survives in the Writ Petition, and therefore, same may be permitted to be withdrawn, would go to show that sharp practice was played by these advocates. The petition was thus withdrawn behind the back of the contesting respondents without taking any efforts to serve notices upon them. 16. When merely stay to the further hearing in the Review Application was granted by this Court, neither the petitioner nor his advocates could have been in normal course anxious to serve the said order on the Branch Manager of the Bank as the order did not concern the Branch Manager. Merely regular service of the copy of the Writ Petition and the order in regular course of business, either by hand delivery or by post, would have been the normal conduct of the petitioner or his advocates. The fact that Advocate Mr. S.V. Kale had earlier accompanied the petitioner to the Bank and on the next day admittedly all these two advocates accompanied the petitioner to the Bank at Samudrapur, District Wardha whereupon the petitioner was able to withdraw substantial amount, would go to show that mischief was played by the Advocates. 17. The fact that Advocate Mr. S.V. Kale had earlier accompanied the petitioner to the Bank and on the next day admittedly all these two advocates accompanied the petitioner to the Bank at Samudrapur, District Wardha whereupon the petitioner was able to withdraw substantial amount, would go to show that mischief was played by the Advocates. 17. Thus, prima facie misconduct of the advocates is proved in the present case. A question, therefore, would be as to what course of action should be taken in the present matter. 18. Affidavit of Mr. Suresh Vishwanath Kale would reveal that in view of the misrepresentation, the concerned Civil Judge, Sr. Dn., Wardha on instructions of the Principal District Judge, had taken action. Even a crime is also registered against the concerned persons. Advocate Mr. S.V. Kale was in the custody for three days as police custody remand was granted by Chief Judicial Magistrate, Wardha in the crime. It appears that ever house of Advocate Mr. S.V Kale was searched by the police during investigation of the crime. In the circumstances, instead of proceedings for an action under the Contempt of Courts Act, we deem it fit to refer the matter to the Bar Council of Maharashtra and Goa to take appropriate action in the matter. Let the copies of the application, affidavits of both the advocates and the present order be forwarded to the Bar Council of Maharashtra and Goa to take appropriate disciplinary action according to law against Advocate Mr. Suresh s/o Khemraj Sable, R/o: Maskasath, Nagpur and Advocate Mr. Suresh Vishwanath Kale, R/o: Trimurti Nagar, Wardha, Tah. & Distt. Wardha. The application is accordingly disposed of without any orders to costs. Ordered accordingly.