PROFESSIONAL ETHICS AND PROFESSIONAL

ACCOUNTING SYSTEM

(Clinical Paper IV)

DIARY
Subject Code – CLAW 230

GAURAV RAI
B.B.A. LL.B. (HONS.)
16040142046
2016 – 2021
SUBJECT COORDINATOR: PROF. AISHA AHMED SHARFI
FEB – JUNE 2021

Alliance School of Law

Alliance University
Student Name: GAURAV RAI Course: B.B.A.LL.B (Hons)

Registration No.: 16040142046 Batch and Section: A, 2016-2021

Sl. Title Page No.

No.
I. CLIENT COUNSELLING PROBLEMS 5-32
PROBLEM 1
PROBLEM 2
PROBLEM 3
PROBLEM 4
PROBLEM 5
PROBLEM 6
PROBLEM 7
PROBLEM 8
PROBLEM 9
PROBLEM 10
PROBLEM 11
PROBLEM 12
PROBLEM 13
II. CLIENT COUNSELLING WRITTEN SUBMISSION 33-39
III. ARTICLE REVIEW – ‘Role of lawyers in civil and 40-46
common law system regarding commercial disputes’
IV. CASE COMMENT- Hikmat Ali Khan vs Ishwar 47-53
Prasad Arya & Ors ,1997,SC 864(Professional
Misconduct)
V. WRITE UP- Analysis on Addressal of Judges in 54-57
Indian Courts
VI. WRITE- UP ON CONTEMPT OF COURTS 58-60
ACT,1971
VII. WRITE- UP ON ADVOCATES ACT, 1961 61-62

GAURAV

Signature
 Rules and Regulations
Professional Ethics & Professional Accountancy System (Clinical Paper – IV)
Outline of the Course: Professional Ethics, Accountancy for Lawyers and Bar –
Bench Relations
This course will be taught based on the following materials.
(i) Mr. Krishnamurthy Iyer’s book, “Professional Conduct and
Advocacy”
(ii) The Bar Council Code of Ethics
(iii) The Contempt Law and Practice
(iv) Any other reading materials as may be prescribes by the University
Examination rules of the University shall include assessment through
case – study, viva voice and periodical problem solution besides the
written tests as may be seen hereunder:

No. Assessment Description of Assessment Method Weight

Method %
1. Case Study Written Component / Presentation / 25
Panel Discussion
2. Periodical Problem Solution / Presentation / 25
Problem Article Review / Book Review
3. Viva Voice Viva Voce on professional ethics 20
4 Aptitude Client Counselling / Client Interview 30
TOTAL 100

PROBLEM NO 1
SUBMITTED BY:
AKSHAYA SHRI M (16040142011)
ASHUTOSH RAJ SINHA (16040142030)
PRANAV (16040142094)
DATE OF SUBMISSION: 14/02/2021
SISSO is a NGO providing service to HTPS since 2006 such as providing labour, housekeeping
and maintenance work. The contract is based on nomination – which is usually for a period of 3
years after which it gets renewed. SISSO has been working with HTPS since 2006 till date.
Every time during the renewal of the contract post 3 years the security deposit of Rs 50000000
given by SISSO to HTPS were released without any issue. However, in 2019 labour union had
filed a case in the regional labour tribunal of TANKURA against SISSO demanding EPF and
ESI. On 31ST MARCH 2020 SISSO’S contract with HTPS expired. . SISSO had given a letter of
undertaking dated 7/1/2021 to the HTPS stating that we would abide by the judgement of the
Court without fail but did not agree to provide with the indemnity bond as stated by HTPS.
Despite proper compliance SISSO has been deprived off the deposit and hence would like to file
a suit against them in district court of Kolkata for the recovery of the security deposit amount
Rs.50000000 along with all the legal cost and compensation.
In last 15 years of their contractual relationship there were no issues faced regarding releasing
of the security deposit. However, the problem began only after the case was filed by the labour
union. HTPS has no say over the said case as they are not a party to the case . They are bound to
release the security deposit as per the contract that was entered by SISSO. Due to the withheld
security deposit SISSO organisation has been facing huge loss.As per the rules of Govt.
Employees’ complete 12% goes to PF account while employer contributions' 8.33% goes to
Pension Fund and 3.67% goes to PF Fund. Employee State Insurance Corporation(ESIC) is
deducted on gross salary which is 1.75% from the employee contribution & 4.75% from the
employer contribution. So, HTPS being employer ought to contribute 8.33 percent on pension
fund ,3.67 percent on provident fund and 4.75 percent as employer contribution in ESI(As per
EPF ACT OF 1948,ESI ACT 1952).However , HTPS has not been abiding by the rules and has
been stating that SISSO has to pay the said EPF and ESI amounts on daily wage .Whatever
amount that was given by HTPS to SISSO has been disbursed to the labourers. None of the
clauses in the contract ever stated about EPF and ESI. There are no dues from the from SISSO as
all bills regarding expenses, materials,tractor expenses, JCB expenses, Grass cutting machine ,
fuel, miscellaneous expenses like stationaries and cleaning materials and other financial
statements accounts have been cleared by Financial department of HTPS ever month and NOC
was obtained. On 17th of September 2020 HTPS also demanded letter of undertaking that SISSO
would comply by the judgement of the court, EPF ESI act of 1948 and 1952 respectively with
the EPF, ESI rules of 2016 along with an indemnity bond which states that SISSO would pay the
deposit amount and other amount as per the verdict of the court. SISSO had given a letter of
undertaking dated 7/1/2021 to the HTPS stating that we would abide by the judgement of the
Court without fail but did not agree to provide with the indemnity bond as stated by HTPS.
Despite proper compliance SISSO has been deprived off the deposit and hence would like to file
a suit against them in district court of Kolkata for the recovery of the security deposit amount
Rs.50000000 along with all the legal cost and compensation.

PROBLEM NO 2
 Submitted by:
RAKSHA HEDAU
YAMINI GURJAR
ASHWIN RATHAN KUMAR

The client Mr. Ashwin Rathan Kumar visited the Adv. Raksha Hedau and Adv. Yamini Gurjar
for legal opinion on the problem mentioned above. The presentation focused on understanding
the legal concern of Mr. Ashwin Rathan Kumar. It was understood during the session through
the construction contract that our client was facing issue of non-compliance of contract. Mr.
Ashwin Rathan Kumar informed us that his Client Mr. Bajaj for whom he constructed a
residential house has passed away. Since his death he is not been able to receive his due
payments. He has approached the son of Mr. Bajaj (legal heir) to ask for further payments. Mr.
Armaan blatantly denied further payments and informed our client that he is not aware of
payments to our client. Client seeks advice on the further procedure to be followed in order to
legally receive his entitled payments from Mr. Armaan. During the counselling it has come to the
notice that was cheque dishonoured. Towards the end of the counselling, client agreed upon
sending a legal notice in order to facilitate a conversation between Mr. Armaan. The client
agreed upon meeting in the future with required set of documents to take up the matter.

In furtherance with compliance to the contract, Mr. Ashwin Rathan Kumar contacted Mr. Bajaj’s
son and his legal representative Mr. Armaan Bajaj. Armaan Bajaj aged 18 is the sole heir of the
Bajaj enterprises and businesses. With this reference, it becomes the liability of the Legal
representative to comply to the contract of Mr.Bajaj. As mentioned earlier, Mr. Armaan now is
liable to pay the remaining contract amount of Rs. 15 cr to Mr. Ashwin Rathan Kumar. The issue
now arises in execution of the contract. Wherein, Armaan denies his liability in execution of the
contract as he was not aware of its very existence. After 15 days of the death of Mr. Bajaj, Mr.
Ashwin Rathan Kumar went to the residence of Mr. Bajaj for the further payments. As Armaan
refuses to pay further amount, and the remaining cheques given by Mr. Bajaj were dishonoured
by the Bank of HDFC. To this, Mr. Ashwin Rathan Kumar now seeks a legal opinion for how to
resolve the issue of non-payment and non-compliance of the contract.

PROBLEM NO: 3
Submitted by:
Diyaa Kuntal Desai
Harsh Patel
Iqbal Ahmed
Mr. Harsh Patel approached the law firm Desai & Associates in New Delhi, stating his concerns
over the acquisition and wanting to file, in the name of the NGO, a writ petition on behalf of the
Sundarbans Forest, as he believes that forests are also entitled to the fundamental right of
existence and acquisition of forests without conducting environmental and social impact
assessments is a violation of its fundamental rights.
Legal Issues:
1. Statutory remedies available against the lad acquisition proceedings initiated by the
National Highways Authority of India
2. Whether Mr. Harsh can file a writ petition as the ‘next friend’ of the forests alleging
violation of their fundamental rights?
Since the Notification is only with respect to intent, not actual acquisition and the Supreme Court
has held that no prior environmental clearance is required for a 3A notification. But if they have
started construction or are planning to start construction before the 21- day period, that is
unlawful and we can seek an injunction. Mr Harsh was advised to file objections, as it’s
important that you exhaust all the remedies available. If they do not conduct a proper hearing of
the objections and a declaration under Section 3D of the Act for the actual acquisition of land is
issued, Mr. Harsh can challenge it before the High Court. Coming to the writ petition stating that
the fundamental rights of forests has been violated; Mr. Harsh will have to file it before the High
Court of Calcutta.

PROBLEM NO 4
SUBMITTED BY
ARTHY.K
S.DHIVYA PREETI
MONIKA SINGH
Problem:
Arthy, CEO of MAD.CO.Ltd, Indian fashion e-commerce Company headquartered in Chennai,
Tamil Nadu. The company was founded in the year 2007 to sell personalised gift items. Later
MAD began selling fashion and lifestyle products and moved away from personalisation. MAD's
portfolio included about 1, 50,000 products of over 1000 brands. Jithesh was an employee in
MAD.CO.LTD, since 2008 and was promoted as an assistant manager in the year 2012 due to
his performance. After his promotion there was complaint lodged against him to the
management by the other staffs that he had been indulged in swapping fake products instead of
the branded products while taking orders from the customers on 4 th February 2020. After
investigation the complaint being proved to be true, he has been terminated on 2 nd December
2020.After which, he being the employee of the Mickey company, started sending derogatory,
defamatory, obscene and abusive emails to his employers and also to different subsidiaries of the
company around the country. On January 20th 2021, His wife had posted in the social media
stating that the logo was insulting and offensive towards women and they mentioned that the
products delivered to customers are duplicate. The post mentioned that M.A.D. Co.ltd has to
change its logo as it is depicting the naked women and also it is insulting an offensive towards
women. As a result, there was a drop in monthly turnover and nearly 5000 orders were cancelled
in the month of February. The CEO has come to seek legal opinion.

PROBLEM NO 5
SUBMITTED BY:
R. PON AISHWARYA
S. ARTHIKA
AQUIB ROUF

ABC Limited has an automobile factory in Krishnaveni Nagar, Medavakkam, which is in the
outskirts of Chennai. There was displeasure between the employees and employer for a
longer period of time. The Employee always had a complaint that the employer never
listened to their needs and made them to work brutally. Several meetings were conducted
between the Employer and Employee regarding this issue. The Employer always answered
that the work burden will increase according during the production period and the amount is
always paid during the over-time period. On Monday, 11.1.2019, Mr. Harish has injured his
hand by 10.00 A.M and was admitted in the hospital in CSI Kalyani multi-speciality hospital
by 12.00 A.M. The manger of ABC Limited, Chennai branch visited the hospital and stated
that compensation money would be provided by not considering the fact that whether it was a
mechanical error or his mistake. By then, the employees of Harish’s department gathered
around the factory discussed that the issue was due to mechanical mistake and decided to
conduct the strike. In the meeting the employees also stated that they have constantly
informed about this to the employer but they have not considered it. Two people were already
injured priory. The employees went under strike for the next 10 days. The employees
consisted of 20 members of that particular department. The employees reported to a local
magazine named Dailymalar that the machines was not maintained properly by the employer
even after constant notification and they made them to work more than 8 hours. The
employer filed a case against the employees on the other hand in the Madras district court. In
their plaint, they have stated that it is an illegal strike because the employees did not provide
notice before 6 weeks as mentioned in Section.26 of the Industrial dispute act and refused to
pay the average pay for those 10 days. The employer filed the case under Section.26 of
Industrial dispute act for illegal strike and for defamation under Sec.499 of the IPC and
further terminated the employees for breach of contract.

PROBLEM NO 6
Submitted by:
Pranav Prakash
Ankush Kejriwal
Anirudh Rao

Ankush and Anirudh are Partners of A&A Steel LLP, a steel manufacturing partnership firm.
The firm was started in 2016 and is only into its 4th year of business. It is a very new entrant
into the business of steel manufacturing considering that all their competitors have been in
business since the pre-independent era. With only 4 years into business, they earned their first
profit in the year 2018, when they recorded Rs. 2 Crores as their Net Profits. A&A entered
into an Agreement to Sale with Mazda Construction Ltd, for the supply of 50 tonnes of steel
worth Rs. 3 Crores. This is the biggest order that A&A has executed. A&A started the
manufacturing of steel as per the Agreement and supplied all the 50 tonnes of steel on
01.01.2020. On the same day, both the parties entered into a Sale Agreement, thereby,
finalizing the transaction. The Sale Agreement dated 01.01.2020 was duly signed and
stamped by the authorized agents of both the parties. However, Mazda only made proper
payment of the first instalment and the second instalment was made through cheque instead
of RTGS, which was the accepted MOE of payment under the agreement.

The parties however agreed over the phone that the Rs. 50,00,00 that was payable on 01.03.2020
could be carried over and paid on 01.04.2020 with no interest payment applicable for the delay.
So, on 01.04.2020, A&A was supposed to get an amount of Rs. 1,00,00,000 from Mazda through
Bank transfer or RTGS mode. the Founder and CEO of Mazda, along with his 5 managers had
gone for an international visit to China, they had met with a plane crash and all of them
unfortunately passed away. This broke the whole top-level organizational chain of Mazda and
there was nobody to look after the company and keep the company running. Owing to this,
Mazda shut down its operations temporarily for an indefinite period. Due to the incident, Mazda
completely stopped making payments and communications with A&A Partners.

PROBLEM NO 7
Submitted by:
PUTTY MEGHANA,
K. YASHEELA
Yashila D/O Sujatha residing at Sr Nagar, Hyderabad has made a job application for
employment through employment exchange platform (Naukri.com) for the position of senior
engineer in Solar Power Pvt Ltd which is located at Vidyaranya Pura post, Bengaluru. In pursuit
of the same an offer letter was extended along with the non-disclosure agreement stating that she
was selected for the position of senior power electronics engineer along with the time limit for
accepting the offer letter-cum-NDA by email and hand by 19th august 2020. The offer also states
that reporting to work should not be later than 01.09.2020. She has communicated through a mail
stating her willingness to work for the solar company on 19 th august 2020. Later on, she has been
infected with COVID-19 and asked for the extension of 15 days through a mail for the
compliance of the job formalities and same was accepted by the company. LEGAL ISSUES:
1. Whether there is valid acceptance of the offer?
2. Whether a binding contract is established?

REMEDIES OFFERED: In this the Indian Contract was involved wherein the aspects relating
to the existence of contract and communication of the acceptance of the offer was present.

PROBLEM NO 8
Submitted by:
Muhammed Anees
Rithik S Anand
I am Ram, 48 years old residing in Kannur, Kerala. I was working as a medical representative
and was the only earning member in my 4member family including my mom and my two sisters.
On 15thof March 2020 I suffered a severe chest pain and was admitted to ABC hospital in
Kannur and was given emergency care and was advised to be under observation for a week from
a period of 15th march to 23rd march also to conduct the vital tests. Later after angiogram was
done they detected coronary blockage of 90 percent in four arteries and was advised to undergo a
bypass surgery at the earliest and was also informed that the issue is life threatening. The
hospital authorities quoted a sum of Rs 230000 for the surgery and aftercare. Due to the pressure
from the side of hospital authorities and being informed that my disease is life threatening I had
no other option but to undergo the surgery even though my financial situation was not stable.
The investigation is in progress and I need legal aid in pointing out the cheating and negligence
from the side of the hospital my whole wealth has been drained and due to their negligence I
cannot even move without someone’s help. Me and my family is in utter poverty as I was the
only earning member, I need relief and compensation from the side of the hospital for their
negligence and also the authorities responsible for this situation shall be brought under law and
punished.
 Here the doctor is liable under sections 337 and 338 of IPC as it has caused a major
physical damage to the patient. Here under criminal liability section 304A of IPC also
can be mentioned. The doctor is also vicariously liable as the surgery was performed by a
medical student and his assistants so the liability of the fault from their side goes to the
main surgeon which comes under torts.

PROBLEM NO 9
Submitted by:
E Shwetha Nambiar
K Vaishnavi Alladi
S Vijay Adithya
Sandhya Sharma is an unemployed widow living in Hebbal, Bengaluru. She is the registered
owner of a Suzuki Alto car (KA 29 AH 4224). This car was stationed in front of her house so as
to take it inside the car shed while Sandhya had just returned from a wedding. At around 11
o’clock in the night on 11/12/2020 a Mitsubishi Pajero vehicle (KA 05 HN 0365) driven by a
lady, came in an uncontrollable, rash and negligible manner and hit against the electric post on
the Western side of the road and after damaging, it ran over and hit against my vehicle on the
back side while Sandhya was still in the car in the front seat. Due to the rash strike on the back
side of the car, Sandhya strikes her face to the steering wheel and starts bleeding from her nose.
This accident happened due to careless, rash and negligent driving of the Pajero driver. Upon
police enquiry, the police found that the Pajero vehicle KA 05 HN 0365 was registered on the
name Priyanka Rai. Police tried to settle the matter between Sandhya Sharma and Priyanka Rai.
But Priyanka Rai clearly refused to pay for the car damages. Sandhya sustained a huge loss due
to this accident. She lives on a monthly pension of 22,000 rupees that she receives from Armed
Forces Pension Scheme. Sandhya seeks legal advice to recover her money for the damages
caused to the vehicle and other expenses incurred thereof.

PROBLEM NO 10
Submitted by:
N ARAVIND RAJ
A LALITH NIKHIL
M MOHAMED AFRIDI
Dinesh, 27-year-old from Vijayawada. Dinesh is not a migrant worker. He is born in
Vijayawada. He started working as a construction laborer at the age of 16. He is a construction
laborer under Mr. Kumar. Dinesh was working under Mr. Kumar from December 2012. Dinesh
is the only one who earn money in his family. His monthly income is so low that he could not
take care of them.
He started his work on 29/10/2019 for painting a newly constructed building in Vijayawada
Medical College. His daily wage is fixed at 320 rupees per day and his contract period is for 50
days. On 27/11/2019 during his work in medical college building, Vijayawada, he was painting
the outer walls of the building at a height of 12 mtrs standing on a lattice tied to the building and
the lattice broke and the safety belt which he had upon him also did not protect him from falling.
After the accident he was taken to Medical College hospital, Vijayawada. He had several injuries
including severe head and spine injury. His injuries are temporary and Doctors suggested him
not do any physical work that stresses his spine. Doctors told him that it takes around 2 years for
full recovery, till then he should not do any work that stresses his spine.

As he is still undergoing treatment he is unable to continue his work. He spent a large amount for
treatment. Now his family is suffering due to him. Financial stability of his family is lost. Dinesh
asked Mr. Kumar for compensation but he refused to pay saying he is not eligible for
compensation. Dinesh need advice regarding his chances of getting employment compensation
as it is a matter of urgency as his family is in utter poverty.

PROBLEM NO 11
Submitted by:
Jayananthini.T
AbishekPuthiyaParambath
Mr Naveen Varma, aged 33, residing at Shivaji Nagar, Bangalore-560001 is a data analyst at
Mac Pro Technologies Pvt Ltd which is a company registered and incorporated in India in
accordance with the provisions of the Companies Act 2013 as of 13/03/2015, and is situated in
Shivaji Nagar, Bangalore- 560001. Whenever he gets free time, hedoes food blogging and has
an Instagram page which has a lot of followers and is extremely popular in Bangalore. He started
developing a liking and fondness towards spicy non vegetarian food, especially fried and roasted
meat. His lifestyle and addictiveness to such kind of junk food resulted in him developing
chronic nausea, which propelled him to seek immediate medical advice in order to regulate it. Dr
Basavaraj then explained the course of action that ought to be taken now to remedy this medical
condition and the only solution that was left was another surgery. Mr. Naveen decided to go
ahead with it as per the instructions of Dr Basavaraj, however, this required him to undergo
another expensive and painful surgery which happened on 10th February 2021 which costed him
3 Lakhs rupees inclusive of the treatment and medicine cost, admission cost and tax. Mr Naveen
paid for the same by way of a NEFT Transfer dated 10thFebruary 2021 done from his ICICI Bank
Account bearing the name Mr Naveen Varma and having the Account Number 140592108547.
Apart from this, there was also a lot of mental trauma that Mr. Naveen underwent due to the
side-effects of the drugs and medicines administered to him during this period, as a result of
which he was unable to go to his job for duration of 2 months. Mr.Naveen wants to sue Dr K.S
Gowda and claim compensation from him for the loss and suffering that hehas undergone and
wants to seek legal advice on the same and has approached Ms Jayananthini.T for the same, who
is an advocate enrolled with the Karnataka Bar Council and is currently residing at Wilson
Garden, Bangalore- 560027.

PROBLEM NO 12
Submitted by:
Pulugu meghana Reddy
Roshan Singh
Gaurav Rai
Mr. Arvind Mehra, aged about 35 years resident of Vidya Nagar, Allahabad. He has two siblings
namely Mr. Ashok Mehra, aged about 32 years resident of Vidya nagar, Allahabad and Mrs.
Alanknita Mehra, aged about 30 years resident of Rampur Maharashtra. Father of Arvind Mehra,
Ashok Mehra and Alanknita Mehra is Jogendra Mehra (died). Late Jogendra Mehra owed a
property in Allahabad, Rampur, 505468 with 2500sq. Ft. The value of the property is
1,50,00,000/- only ( according to the current market price).(Annexure 1)
The aforesaid property was transferred to Mr. Jogendra by a sale agreement (Annexure 2) dated
11.01.1950 from Mr. Rajeev Singh (who was zamindar in those days). The aforesaid property
after enactment of Zamindari Abolition Act, 1950, and to give effect the state of Gujarat enacted
Gujarat Devasthana Inmas Abolition Act 1969, therefore the aforesaid property was taken into
the custody of Government of Gujrat through notification no. 26 (Annexure 3) and the property
was allotted for development of SC/ST community in the society on 26.05.1970. Mr. Rajeev
Singh died on 05.05.1952.
Late Jogendra Mehra filed case on 06.07.1970. at District and Sessions Court of Allahabad about
the sale deed that took place between Jogendra Mehra and Rajeev Singh regarding aforesaid
property. The District court upheld the Notification no 26 on 09.08.1980. Upon appeal to High
Court, the order of district court was reversed on 11.11.1998. Upon appeal by Government of
Gujarat, the Supreme Court upheld the order of High court, holding that the sale deed valid on
02.01.2019.
During the pendency of case in the Supreme Court, late Mr. Jogendra Mehra wrote a gift deed
on the disputed property on the name of Mrs. Alankrita Mehra on 18.10.2018 (Annexure 4) with
the sign of both the parties and witness signed is made by Mr. Alankrita Mehra's paternal uncle
Mr. Romesh Mehra and her husband Mr. Rajiv Mehra. Mr. Jogendra Mehra passed away on
23.05.2018.
Mr. Arvind Mehra stated that Mr.Late Jogendra Mehra was influenced on his death bed by Mr.
Alankrita Mehra and her husband to get the property transferred on her name.
 The claim is that the property being self-occupied property of Mr. Jogendra Mehra
being in dispute when the will as made, the property shall be equally divided between the heirs
of late Mr. Jogendra Mehra.
PROBLEM NO 13
SUBMITTED BY:
CHRISBEL RANJITH
RAJALAKSHMI P NAIR
This problem revolves around the client, Mrs Nithya Das who owns a 30 acres farm named
"Green Meadows" situated in Pala, Kottayam, and Kerala. On 8th January 2021, around 4:15 pm
Mrs Nithya and her workers heard several screams in the farm and rushed over, to find a 15 year
old boy unconscious and stuck in the bore well hole, in her farm. The boy was rushed to the
hospital, but since he suffered a head trauma, his left side was completely paralysed. On 10th
February 2021, Mrs Nithya received a legal notice from Adv. Nandakumar, upon the directions
of the parents of the victim. She was asked to pay a compensation of Rs 50 Lakhs; owing to her
negligence in not closing the bore well in a proper manne Mrs Nithya approached Adv. Chrisbel
who is senior associate in C&R Associates seeking legal advice.
 PROBLEM NO 14
SUBMITTED BY:
ADNAN ALAM
BRINDHA BALAKRISHNAN
KEERTHANA BP
Ms. Keerthana Chand (client) resides in Bangalore, Karnataka. She is an actress based in
Bangalore and is the wife of late Mr.Sameer Chand (famous business man). Three weeks ago,
Mr.Sameer Chand was found dead in his bathtub after alcohol intoxication. The client believes
that the death of Mr.chand is suicide as he had been struggling with depression for a year due to
the immaculate losses endured by him in his business endeavours. Bangalore Police reported the
death of Mr.chand as Suicide and accidental drowning after the post mortem report but owing to
the highly controversial defamatory remarks made on I&G channel, the Bangalore police
department proceeded w a case of abetment to suicide against the client. The sensationalistic
approach towards journalism by the host of the channel has caused damage to the personal
reputation of the client. The client also alleges that the host runs the Twitter handle
@sardarspeaks with nearly 2 lakh followers, and has reiterated and recirculated the defamatory
telecast to an even larger audience, through Twitter. Such actions of the host have been
detrimental to the image of the Client who is a public figure. The client seeks legal advice on
how to proceed further with the issue.
Problem 15
SUBMITTED BY
SWETHA NAMIBAR
VAISHNAVI ALLADI
VIJAY ADITHYA
Vamsi is the owner UDHAYAM TRANSPORTS which is located in Tirupur .The owner has
10 trucks running in and around the country and he has around 25 employees working in his
company
One of the employee named Prabhakaran son of Vijayakumar ,aged about 40 years who is
working in Udhayam Transports as a driver was on the duty travelling from Bangalore
towards Coimbatore on 18/01/2021 in TN39 BP 2089 Container lorry in NH47 Bangalore To
Kanyakumari Highway the other ongoing lorry bearing Reg.no KA 01 B 2739 owned by the 3 rd
respondent which is proceeding in the same direction suddenly it stopped on the road due to
some issues .
Prabhakaran tried to avoid hit against the ongoing lorry but due to the speed and the lorry was
loaded with raw wood material . The driver could not able to stop and ended up hitting the
lorry . The front cabin of his lorry was severely damaged and the driver Prabhakaran died in
the accident . The kaveripattinam police station S.I Ravi filed the case against Prabhakaran
under the section 279 , 304(A) of IPC .
The deceased (Prabhakaran’s) mother was seeking compensation for her death of her son against
the owner . The owner refused to pay any compensation because the accident happened only
rash and negligent act of the other lorry . So , she has filed the case against the Owner of the
Udhayam Transports and others
So, our client the owner of the Udhayam Transports approached us with this case in client
counselling it will be discussed whether he will be liable to pay the compensation or not and
further details regarding the case .
Problem.16
SUBMITTED BY
POOJA UNNIKRISHNAN
SRISTIKA
IRENE
Irene, is a 26 year old woman who worked with Rupa Enterprises ("employer") which is an
automobile parts manufacturing company, which is an establishment with more than 20
employees, with its registered place of business at Indiranagar, Bengaluru. Rupa Enterprises is
registered under EPFO since 2013. She worked as an engineer with Rupa Enterprises for the past
5 years since 2015. Her basic salary including dearness allowance amounted to INR 60,000/-.
After PFA deductions, her salary amounted to INR 56,000/-.
The salary slip that is provided has specific breakup of salary and deductions and it shows
deduction of employee contribution towards PF. The offer letter along with the Employee
Agreement signed by both the employer and Irene states specifically that PF contribution would
be made and deductions against the same will also be done during the payment of monthly
salary.
Employees PF account has been created separately for Irene, also the employee’s contribution
towards EPF has been deducted but no deposit has been identified. However, Irene had to quit
her job due to claims of sexual harassment at workplace by a senior engineer, Mr. Pradeep who
was part of her team at work. Irene approached senior HR manager and put forth the allegation
of sexual harassment in order to take disciplinary action against Mr. Pradeep. She was asked to
submit a written complaint of the claim to proceed with the same and she submitted the written
complaint on the same day. However, the employer failed to address the issue and take any
action against Mr. Pradeep. Furthermore, Irene felt threatened and insecure at her own workplace
because of the aforesaid incident. Aggrieved by the situation, Irene decided to quit and gave one
month notice to complete the resignation procedure. During this time, Irene also happened to
claim for her PF amounts but adequate responses were not given by the employer regarding the
PF amounts. The next 2 months from her date of resignation notice, she applied to other
companies but was unable to find a suitable position and was unemployed during this period. She
also e-emailed the employer time and again during the course of unemployment to release her PF
funds. After sending several emails, she received one email from the employer stating that they
would release her PF funds within a month. On the third month, she landed a job with her
references and had to relocate to Vishakhapatnam, Andhra Pradesh immediately.
Irene still has not received her PF amounts and she was hopeful about receiving the same.
Problem 17

SUBMITTED BY

Rhea JR

HemaSri (Junior Lawyer)

Yarlagadda vaishnavi

My daughter’s name is Ridhima who is 16 year old who is perusing her class 11 at Delhi public
school. She has always suffered from obesity and irregular periods due to thyroid which she had
since childhood.

One day while on her way back to her home with her friends she fainted on the road. With the
help of an auto driver her friends took her to a nearby nursing home where my daughter came to
know that she is 24 weeks pregnant and she fainted due to low iron content in her body. She
never noticed that she was pregnant due to her pre existing condition of obesity and irregular
menstrual cycle.

My daughter and her friends requested Dr. Satyam Gupta to terminate the fetus secretly. But
Dr.Gupta refused to do it. Later while leaving the hospital a nurse from the same nursing home
who was present at that time in the room told my daughter that she will terminate the pregnancy
if my daughter pays rs.10,000 to her. Caught up in the emotional turmoil she agreed and later
my daughter and her friends collected their pocket money and gave it to the nurse to terminate
the fetus. She later had an induced abortion during her 25 thweek of pregnancy without my
knowledge.

After the termination she had heavy bleeding with a very bad abdominal pain. So I took her to
the hospital where we came to know that she is suffering from hemorrhage and ovarian vein
thrombosis which can be a result of recent abortion.

So later on when I confronted her about it, she told me the truth about her pregnancy and how the
nurse at Dr. Gupta’s hospital helped her terminate the pregnancy. Later I was astonished about
the issue and confronted to Dr. Gupta about the same. He declined straight about the happening
ofsuch thing in his hospital. And even the nurse has declined any such incident taking place.
Later through my sources I have come to know that the nurse has been performing such
abortions from the past 2 years off the record in an unclean environment without the knowledge
of Dr. Gupta. Also she did not inform my daughter about any risks involved in the termination of
a pregnancy.
Problem 18

SUBMITTED BY

Niranjan

Hassasn Ali Muhammed

On 15 of November 2020 I was diagnosed with lung cancer during my last stage in apollo
hospital which is situated in koramangala. Doctors suggested me to directly go for a surgery
within 15 days, as the situation was getting critical. I was admitted to the hospital on 27 th of
November, 2020 to the intensive care unit, on the day of the surgery. On 28 th November, 2020,
they successfully removed the cancer from my lung and I got discharged from the hospital after 3
days, i.e. 1st December, 2020. The total bill I paid for the treatment which was 2,50,000. i
invested all my savings and now I am left with nothing.

i went to another hospital, St. Johns Hospital in Koramangala for a checkup on 15 th December,
2020, as i started getting aches and when the chest area got swollen. They did a CT scan and they
ran a few other tests to detect the problem and they found out that doctors while removing the
cancer from the lungs left a scissor inside. The Hospital charged another 25,000 for the tests. To
pay for these tests I took a loan from a close friend and I am supposed to repay the amount
before 180 days.

I went to the Apollo hospital and asked the doctors to remove the scissor as soon as possible.
They removed it through endoscopy on 17th December, 2020. The doctors asked me to pay
another 20,000 rupees for the same. i refused to pay the amount as it was doctor’s negligence. I
was in pain and anger of not getting treated well and losing my money for their negligence and I
walked out of the Hospital but as i didn’t pay for the second surgery, they took my passport
which I was carrying when i was admitted to the hospital and the hospital refused to give me
back my passport until and unless i pays the fee and surgery charges.

Now, I wants to file a case against the hospital for their negligence and I want compensation as
well.
Problem.19

SUBMITTED BY

BISHESH

PARAS

RAVIKANTH

Mr singhania is a famous entrepreneur running the food chain “taste of North” in Bengaluru
from last 21 years, mr singhania is a resident of Bengaluru residing at 801, ahika apartments,
Ranka colony road Bannerghata 560076. The food chain was started in the year 2000 the first
outlet was setup at kormangla 100 feet road near Sbi branch office and in recent years the
company was making huge profits so, many other outlets were opened by mr singhania in areas
like Btm, Kalayannagar, indranagar & anekal . But over the past year, the world has seen alot of
changes due to the pandemic of covid-19 has been an unprecedented the overall Indian
hospitality sector in India is putting it mildly resulting in huge losses. And mr singhania food
chain taste of north is also in huge losses due to the pandemic

In financial year 2020 the losses of company has been amounted to 28,75,000

In order to survive in the market mr singhania decided to sell his two outlets to mr khilji for sum
of 2 crore one crore each which are located at kalyan nagar street-25 shop no-86 near gopalan
mall and another one is located btm 7th cross road shop no-97 a near dominos.

Mr khilji is a resident of Bengaluru residing at 24th cross 4 main house no-101, indranagar.
560065

The sale agreement between the parties was signed on 4st jan 2021 by mutual consent.

The sale agreements contains the following details-

1. Payment details
The payment of sum 10,00,000 was paid in cash and for the due amount cheque was issued by
mr Khilji to mr Singhania cheque no 123456 of axis bank dated 5th feb 2020 for sum of rupees
1,90,00,000.

2. Dispute Resolution

(It is Agreed) That any dispute between the parties regarding the contents of this Agreement
shall be referred to mediation subject to the choosing of a mediator of both the parties’ choice. In
the event that the mediation process does not produce the desired results to either of the two
parties, it shall be referred to Arbitration in front of an Arbitral Panel which shall be chosen by
the parties mutually. In any case, the decision of the Arbitral Panel shall be final and binding
upon both the parties.”

But on the date of 5th feb 2020 check bounced in Axis bank jp nagar branch Bengaluru due to
insufficient balance in mr Khilji account, after that mr singhania contacted mr khilji who was not
willing to pay mr singhania the due amount of 1, 90, 00,000. When Mr. Singhania tried reaching
Mr. Khilji, he has constantly been avoiding his calls and once his office assistant had picked up
the call and spoken in abusive language to Mr. Singhania. When Mr. Singhania tried to visit him
in his office the security had informed to him that Mr. Singhania has gone on a vacation and
there’s no information on when he would return.

Now Mr singhania has decided to seek the help of legal counsel from prb advocates to recover
his due amount from mr khilji.
Problem.20

SUBMITTED BY

RISHAB NEGI

ARUN KUMAR

Ram Kapoor is a well-known sweet seller in Uttrakhand. His shop is particularly well-known for
the Dark chocolate. Its recipe is a secret of Ram Kapoor and he does not share it with any
outsider to the family. He gets orders from across the country for his famous Dark chocolates. He
has three shops in Uttrakhand. He also has one house. All his properties are self-acquired. He has
three sons Ramesh, Suresh and Anand who help him with his business. His eldest son Ramesh
contributed the most in the business and did not wish to marry. Ram Kapoor persuaded Ramesh
for marriage and promised that if he gets married, he will gift the house to him, provided he shall
be allowed to live on the ground floor. Ram Kapoor also executed a registered Gift Deed in
favour of Ramesh, with a condition that the deed will come into effect when the marriage
solemnizes. He also had a communication with his son Ramesh about one more condition that he
shall be allowed to occupy the ground floor and will be looked after by Ramesh and his future
wife. This condition does not find a mention in the gift deed. The house continues to be
registered in the name of Ram Kapoor, who has been paying House Tax thereon; the electricity
and water connections of the house also continue to be in his name and he has been paying bills
thereof. A considerable time lapsed after this and Ramesh seemed unresponsive towards the
question of his marriage and didn't even formally accept the Gift. He also did not give his assent
to the condition regarding the stay of Ram Kapoor on the ground floor. After 5 years from the
date of gift deed, at the age of 42 yrs finally Ramesh got married. Soon after the marriage of their
elder brother, two younger sons of Ram Kapoor moved out of the house as they were aware of
the gift deed in favour of Ramesh and started living separately with their families. Ram Kapoor
shifted to the ground floor of the house. After this Ramesh started making the payments of Water
bill, gas bill, electricity charges etc. After 6 months of his marriage Ramesh along with his wife
Seema went for the 51 Shakti Peeth Darshan. Ramesh died in a landslide and his wife got
seriously injured. Ram Kapoor immediately went to save his daughter in law. She got saved with
much difficulty. The doctors told him that she is expecting and needs lot of care since it is now a
delicate case due to her mental and physical condition. There are chances of loosing the child.
Ram Kapoor sided with his daughter-in-law and took care of her all this time. During this period,
Ram Kapoor health started deteriorating. There were losses in business. He wrote a will, divided
the entire business into three parts. Seema, after the birth of her son, started snubbing Ram
Kapoor; the treatment meted out by Seema to Ram Kapoor worsened "within a few months" and
she also stopped giving food, though Ram Kapoor continued to live on the ground floor,
compelling him to go for food to the adjoining house of his another son. After few months,
Seema eventually prevented the entry of the Ram Kapoor to the ground floor and also expressed
her wish to live with her parents, after selling the house. Ram Kapoor now wishes to revoke the
gift deed on the ground of breach of condition attached with the gift deed that Ramesh and
Seema will look after him, taking care of all his needs including food, shelter, clothing etc.
Meanwhile, Seema sold the house to Anurag and went on to live with her parents.

Mr. Hassan was suffering from lung cancer in a hospital and they operated him immediately.
After 15 days he had few side affects and they took a scan where they found that they kept the
scissors inside their lungs.
Problem 21
Submitted by
Viveka
I am Praveen .J.P S/O Jayadevan. I am in my 30s. I am a businessman by profession. Sindhukala
my relative borrowed amount of Rs 5, 50,000/- from me for her personal needs and issued a
cheque for an amount of Rs. 5, 50,000/- drawn on The Kerala State Co-Operative Bank, Over
bridge Branch for discharging above said debt. She borrowed money from me on different
occasions directly and also from my mother Padmini Amma.
Even after the agreed date of repayment, she failed to return back the debt amount. Hence I
presented the above said Cheque for encashment through my Bank via: Axis Bank Limited,
Karamana Brach, Thiruvananthapuram. But the same was returned dishonored by The Kerala
State Co-Operative Bank. The saidCheque returned because of lack of sufficient amount in her
bank account which was maintained by Sindhukala. Memo stating insufficiency of amount
which was issued by her bank is in my hand.
She has issued the above said cheque without providing sufficient funds in her bank account with
a dishonest intention to cheat me. On 26-10-2012 I have issued a registered notice through my
counsel intimating the accused to make the payment of the above said cheque amount of Rs. 5,
50,000/-.
The above said notice received by the accused on 29-10-2012 and caused to send a reply stating
falsehood. In her replay to my notice, she denied my entire allegations. Everything she stated in
her replay is absolutely false and wrong.Replay to my notice sent by her advocate is with me.
She had not paid the amount so far. There is willful omission from her part to pay back the
cheque amount. The nonpayment of the said amount causes huge financial loss and mental agony
to me. And my business and my family are in great financial risk because of her.
Problem 22
Submitted by
Manigandan
Soundary
Mr. siddharth opened an account with ICICI Bank at 10:00 pm , on 12.01.2021 and received a
message from them saying that he was a winner of a lucky draw conducted by them on 3:00 pm
wherein, he would get Rs 50,000 loan without any security, and they also said they would be
depositing this money into his account and since it was a lucky draw, no documentation was
required. So they deposited this amount. Mr siddharth did not check the balance because his
salary account is linked with Axis bank, and after a month he received a message from them
saying they had deducted a certain sum of amount from his account. He immediately called the
bank and said he never wanted the loan,and how come my money has been deducted . So the
bank manager informed him that once the loan amount is credited into your account they are
entitled to debit this money and recover the loan amount along with interest. The manager also
informed that the loan would be recovered in 12 months’ equal installments. The question that
arises from mr.siddharth is that he has not given his express permission to deposit any sort of
money to his bank account, the client also asked the manager to take back the amount that
deposites in his account but then the manager denied it and said once the loan is granted and he
has to pay the interest for all 12 months. Again mr.siddharth received another message after
another month saying they have deducted the second equal monthly interest. So, to avoid any
further deduction he withdrew the entire amount and only left the minimum required balance.
They kept sending sms’s to pay the further installments and he ignored them until two days ago.
He received a letter from them saying he has to pay all the installments along with the penalty or
else they will approach the court. Now he wishes to get double the benefit. Umm, what I want to
know is, can I file a case against the bank for harassment because I don’t understand how they
can do this to me, it was very unfair and I don’t want this to ever happen again to me. Mr.
Siddharth approached an advocate to file a case against the bank for causing such unfair thing to
him.
 SECOND COMPONENT: CLIENT COUNSELLING WRITTEN
SUBMISSION
Mr. Arvind Mehra, aged about 35 years resident of Vidya Nagar, Allahabad. He has two siblings
namely Mr. Ashok Mehra, aged about 32 years resident of Vidya nagar, Allahabad and Mrs.
Alanknita Mehra, aged about 30 years resident of Rampur Maharashtra. Father of Arvind Mehra,
Ashok Mehra and Alanknita Mehra is Jogendra Mehra (died). Late Jogendra Mehra owed a
property in Allahabad, Rampur, 505468 with 2500sq. Ft. The value of the property is
1,50,00,000/- only ( according to the current market price).(Annexure 1)
The aforesaid property was transferred to Mr. Jogendra by a sale agreement (Annexure 2) dated
11.01.1950 from Mr. Rajeev Singh (who was zamindar in those days). The aforesaid property
after enactment of Zamindari Abolition Act, 1950, and to give effect the state of Gujarat enacted
Gujarat Devasthana Inmas Abolition Act 1969, therefore the aforesaid property was taken into
the custody of Government of Gujrat through notification no. 26 (Annexure 3) and the property
was allotted for development of SC/ST community in the society on 26.05.1970. Mr. Rajeev
Singh died on 05.05.1952.
Late Jogendra Mehra filed case on 06.07.1970. at District and Sessions Court of Allahabad about
the sale deed that took place between Jogendra Mehra and Rajeev Singh regarding aforesaid
property. The District court upheld the Notification no 26 on 09.08.1980. Upon appeal to High
Court, the order of district court was reversed on 11.11.1998. Upon appeal by Government of
Gujarat, the Supreme Court upheld the order of High court, holding that the sale deed valid on
02.01.2019.
During the pendency of case in the Supreme Court, late Mr. Jogendra Mehra wrote a gift deed
on the disputed property on the name of Mrs. Alankrita Mehra on 18.10.2018 (Annexure 4) with
the sign of both the parties and witness signed is made by Mr. Alankrita Mehra's paternal uncle
Mr. Romesh Mehra and her husband Mr. Rajiv Mehra. Mr. Jogendra Mehra passed away on
23.05.2018.
Mr. Arvind Mehra stated that Mr.Late Jogendra Mehra was influenced on his death bed by Mr.
Alankrita Mehra and her husband to get the property transferred on her name.
The claim is that the property being self-occupied property of Mr. Jogendra Mehra
being in dispute when the will as made, the property shall be equally divided between the heirs
of late Mr. Jogendra Mehra.
 Legal Issues
1. Whether Mr. Arvind Mehra petition will be maintainability in the court due to privity of
contract?
2. Whether property transferred is void due to doctrine of les pendens?
3. Whether Section 16 of the Indian Contract Act 1872 can be claimed by Mr. Arvind
Mehra?
Submissions

1. Whether Mr. Arvind Mehra petition will be maintainability in the court due to privity of
contract?
It is strange that there is no single clause relating to this doctrine in the Indian Contract Act,
1972, in India, through a series of case rules, it has been generally recognized, Section 2(h) of
the Indian Contract Act, 1872 describes a contract as an agreement enforceable by statute backed
by any consideration between two parties, in other terms just a binding agreement is a contract. 1

The doctrine of privity of a contract is a common law principle which implies that only parties to
a contract are allowed to sue each other to enforce their rights and liabilities and no stranger is
allowed to confer obligations upon any person who is not a party to contract even though
contract the contract have been entered into for his benefit. The rule of privity is basically based
on the ‘interest theory’ which implies that the only person having an interest in the contract is
entitled as per law to protect his rights.

A beneficiary under a contract: - If a contract has been entered into between 2 persons for the
benefit of a third person not being a party, then in the event of failure by any party to perform his
part, the third party can enforce his right against the others. For eg. In a contract between Alex
and James, beneficial right in respect of some property may be created in favour of Robin and in
that case, Robin can enforce his claim on the basis of this right.  This concept of a beneficiary
under a contract has been highlighted in the case of Muhammad Khan v. Husaini Begum.

1
The Indian Contract Act, 1872
M.C. Chacko vs. The State Bank of Travancore2-
“It is settled law that a person not a party to a contract cannot subject to certain well recognized
exceptions, enforce the terms of the contract: the recognized exceptions are that beneficiaries
under the terms of the contract or where the contract is a part of the family arrangement may
enforce the covenant........It must therefore be taken as well settled that except in the case of a
beneficiary under a trust created by a contract or in the case of a family arrangement, no right
may be enforced by a person who is not a party to the contract."
Utair Aviation vs Jagson Airlines Limited & Another3
“the doctrine of privity of contract is subject to many exceptions, one of them being that a
beneficiary can sue on a contract for enforcement of the benefit intended to confer on him by the
Contract. In Bhujendra Nath vs. Sushamoyee Basu,4, the Division Bench has held that “a stranger
to a Contract which is to his benefit is entitled to enforce the agreement to his benefit.” In
Pandurang vs. Vishwanath5, it has been held “the person beneficially entitled under the contract
can sue even though not a party to the Agreement itself.”

2. Whether property transferred is void due to doctrine of les pendens?

Section 52 of The Transfer of Property Act, 6 The section states that “Transfer of property
pending suit relating thereto.It makes it expressly clear that in a case where the dispute between
any of the parties is with regard to the right of any immovable property, such property cannot be
transferred by any of the parties to the suit which as a result may affect the rights of the other
party involved in the dispute. This principle does not get eliminated after the dismissal of the
suit.
The Supreme Court in the case of Jayaram Mudaliar vs. Ayyaswami 7 has held that the objective
of this section is not to deprive the parties of any just or equitable claim but to ensure that the
parties subject themselves to the jurisdiction and authority of the court which shall decide the
claims that are put before it.

2
1970 AIR 500, 1970 SCR (1) 658
3
SCC (4) 2012 597
4
AIR 1936 Cal 66
5
AIR 1939 Nag 20
6
Transfer of Property Act 1882
7
AIR 1973 SC 569, (1972) 2 SCC 200, 1973 1 SCR 139
Hardev Singh v. Gurmail Singh 8, it was held that the Section 52 does not render any transfer of a
disputed property void or illegal, but instead brings the purchaser within the binding limit of the
judgement that shall be pronounced on the disposal of dispute. In any case where a transfer is
made during the pendency of the suit, if the suit is disposed of in favour of the transferor then the
transferee rights shall prevail whereas on the other hand if the rights of the transferor are
recognised only to a certain extent or part of the property then the transferee’s right shall also
extend up to the limit till which the right of transferor exists.
The principle imbibed in this section finds its genesis in the Common Law maxim of utlite
pendent nihil innovator i.e. during the pendency of litigation; no new rights shall be introduced.
As a rule of justice equity and good conscience, this principle gets applied even in those laws
where the Act is not applied.
Therefore Mr. Arvind Mehra can file case under Section 52 of Transfer of Property 1882 because
of him not being the party to the previous suit.
3. Whether Section 16 of the Indian Contract Act 1872 can be claimed by Mr. Arvind
Mehra to revoke the gift deed?
Section 126 of the Transfer of Property Act9 provides that inter alia a gift may also be revoked in
any of the cases (save want or failure of consideration) in which, if it were a contract, it might be
rescinded . A gift may, therefore, be revoked for coercion, fraud, misrepresentation or undue
influence much as a contract may be rescinded. The right to revoke a gift on those grounds is a
right conferred by statute. It does not flow from any personal contract between the parties to the
case. It is not a right which is confined in point of time to the individual self of the donor. It is
not a right which dies with him. On the death of the donor, the cause of action survives to his
legal representatives. In Ghumna v. Ram Chandra Rao 10, a Division Bench of the Allahabad
High Court repelled the contention that a voidable gift could not be avoided by the donor's heirs.
The law in India as to undue influence as embodied in section 16 of the contract act 11 is based on
the English Common Law as noted in the judgments of this Court in Ladli Prasad Jaiswal v.
Karna Distillery Co. Ltd. (1964) 1 SCR 270 12. "Where there is no relationship shown to exist
8
AIR (1) 2002 62222
9
Transfer of Property Act 1882
10
AIR 1925 All 437
11
Indian Contract Act 1872
12
(1964) 1 SCR 270
from which undue influence is presumed, that influence must be proved". "There is no
presumption of imposition or fraud merely because a donor is old or of weak character". There is
no presumption of undue influence in the case of a gift to a son, grandson, or son-in-law,
although made during the donor's illness and a few days before his death. Generally speaking the
relation of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical
attendant and patient, parent and child are those in which such a presumption arises. Section
16(2) of the contract act shows that such a situation can arise wherever the donee stands in a
fiduciary relationship to the donor or holds a real or apparent authority over him.13
The Court held: "The doctrine of ''undue influence' under the common law was evolved by the
Courts in England for granting protection against transactions procured by the exercise of
insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well
as to other transactions in which one party by exercising his position of dominance obtains an
unfair advantage over another. The Indian enactment is founded substantially on the rules of
English common law. The first sub-section of section 16 lays down the principle in general
terms. By sub-section (2) a presumption arises that a person shall be deemed to be in a position
to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays
down the conditions for raising a rebuttable presumption that a transaction is procured by the
exercise of undue influence. The reason for the rule in the third sub-section is that a person who
has obtained an advantage over another by dominating his will may also remain in a position to
suppress the requisite evidence in support of the plea of undue influence."
Before, however, a court is called upon to examine whether undue influence was exercised or
not, it must scrutinize the pleadings to find out that such a case has been made out and that full
particulars of undue influence have been given as in the case of fraud. See order 6, rule 4 of the
code of civil procedure. This aspect of the pleading was also given great stress in the case of
Ladli Prasad Jaiswal, (1964) 1 SCR 270 above referred to. In that case it was observed (at page
No. 295) of SCR:" "A vague or general plea can never serve this purpose; the party pleading
must therefore be required to plead the precise nature of the influence exercised, the manner of
use of the influence, and the unfair advantage obtained by the other."

Legal Opinion

13
According to Halsbury's Laws of England, Third Edition, Vol. 17, p. 673, Art. 1298
As the client wanted to file case under Section 52 of the transfer of property Act. But it is
advised that the plea will be not maintainable because of the client is not the party to the previous
case. As there is undue influence by the sister of the client, the petition for making the contract
voidable at the option of the client will be filed under Section 16 of Indian Contract Act. As
client is beneficiary to the contract between the dead father and sister, and the contract being
void, makes the client file the case under exceptions under privity to contact. The Jurisdiction of
the Court will be District Court of Rampur as it is the resident of Defendant.
Once the transfer through will becomes voidable, the property will be inheritance property and
will be equally divided between all the heirs of the dead father Jogendra Mehra under Hindu
Succession Act.
As to avoid the legal cost, it has been advised to the client to add his brother to be co-plaintiff, so
that legal cost will be divided as he is also equally entitled for the same.

Case law
1. Ladli Prasad Jaiswal v. Karna Distillery Co. Ltd. (1964) 1 SCR 270
2. Guman vs Ramchandra Roa AIR 1925
3. Sanjay Verma vs Manik Roy AIR 2005
4. National Textile Corporation UP vs Swadeshi Cotton Mills Co Ltd. AIR 2000
5. Rannee Annapurni vs Swaminatha ILR 1911

Governing laws:-
1. Hindu succession Act
2. Transfer of Property Act
3. Zamindari abolition Act
4. Gujarat Devasthana Inmas Abolition Act
5. Contract Act
6. Civil Procedure Code

ANNEXURE
1. Copy of market value of property
2. Copy of sale agreement
3 Copy of Official Gazzetta on which Notification no 26 was published
4. Copy of gift deed

THIRD COMPONENT: ARTICLE REVIEW

 “Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering
Misconceptions Concerning Civil Lawsuits”
By
Geoffrey C. Hazardt & Angelo Dondi
Topic: - ‘Role of lawyers in civil and common law system regarding commercial disputes’

INTRODUCTION-

The author in this article talks about the misconceptions related to civil and common law systems
as there is general perception that both are quite different to each other but there exists many
similarities, especially in commercial disputes between the two and advocates role in unifying
these two systems is paramount. In a period in which an event as interesting and important as the
formulation of Principles and Rules of Transnational Civil Procedure by the American Law
Institute and the International Institute for the Unification of Private Law (UNIDROIT) 14 is
sternly advancing to accommodate basic procedural concepts for both the civil and common law
systems, a central problem faced in such conciliation seems to be that of clarifying the actual
roles and responsibilities of judges and lawyers in the conduct of a civil dispute. To do so will
essentially mean scrutinizing the value and validity of settled conceptions of the inherent features
of civil and common law systems, including the notion that these systems are basically opposite
of each other. In other words, we will attempt to evaluate the correctness and reliability or this
assertion, as well as to the unavoidable opposition it incurs Focusing on the respective roles of
lawyers and judges is especially convenient in conceiving a different configuration of the
relationship between civil and common law systems, and reaching a more appropriate (though
maybe less reassuring and simple) vision of the reality. The traditional view of the fundamental
difference between the so-called "civil" and "common' law systems in the allegedly crucial
different responsibilities of the judge, on the one hand, and of the advocates for the parties, on
the other, makes such an approach necessary.

TRADITIONAL COMPARISION

14
On the UNIDROIT Principles see, for example, UNIDROIT Principles for International Commercial Contracts: A
New Lex Mercatoria? 0CC Publishing S.A. 1995)
The common law and civil law systems are the products of two fundamentally different
approaches to the legal process. In civil law, the main principles and rules are contained in codes
and statutes, which are applied by the courts codes. Hence, codes and statutes prevail, while case
law constitutes only a secondary source of law. On the other hand, in the common law system,
the law has been dominantly created by judicial decisions, while a conceptual structure is often
lacking. This difference is the result of different role of legislator in civil law and common law.
The civil law is based on the theory of separation of powers, whereby the role of legislator is to
legislate, while the courts should apply the law. On the other hand, in common law the courts are
given the main task in creating the law.
This differentiation is basically founded on the assumption that, in civil law systems, civil cases
are actually directed by the judge, with subordinate participation by the parties' advocates 15. An
illustration of this conception of the judge's role is that traditionally it was thought to be up to
him to determine the matters in dispute, identify the necessary evidence, schedule the necessary
intermediate and final hearings, and eventually formulate the judgment according to the law and
the proof. In such a system, the lawyers' activities may be characterized as residual. They may
make suggestions concerning the evidence, as well as propose either issues to be examined or
questions to be asked at the hearings, or eventually submit comments concerning the legal basis
of the dispute. In a metaphorical comparison, the judge is conceived as the priest, while the
advocates act as the acolytes-deferential assistants in a ceremony controlled thoroughly by the
judge. A similar and grossly simplistic conception of the common law judge is that of a passive
moderator between presentations organized and directed by rival advocates. The fundamental
responsibility for identifying the legal contentions to be considered, the evidence to be
considered, and the ultimate basis of judgment remains with the advocates. Furthermore, the
presence of the jury to determine facts-as in the United States system of litigation - renders the
Judge even more passive. The jury is bound to decide the facts on the basis of legal instructions
that, while given by the judge, are initially proposed by the advocates. Accordingly, advocates in
common law litigation are referred to as "combatants," such as those participating in a tennis or
wrestling match, while the judge acts as an umpire in the traditional metaphor. What seems easy
to perceive from these conceptions is that the differences between the two allegedly most
important law systems are stressed, and that, in this perspective, these differences seem
15
See GEOFFREY C HAZARD, JR. & ANGELO DONDI, LEGAL ETHICS: A COMPARATIVE STUDY 63-108
(2004).
substantial and, as such, virtually unbridgeable. In other words, the basic assumption is that the
systems can be defined only by way of contrast, rather than by way of similarities. This
assumption is in fact commonplace in the traditional comparative study of law, especially
procedure, and is still perpetuated nowadays.

ADVOCATES ROLE
In both civil and common law systems, the advocates in modern commercial litigation have a
primary role in defining the disputes, as well as the legal and factual bases under which they are
adjudicated. However, in both common law and civil law systems, the judge maintains a pivotal
role in managing the development of the case and the sequence of addressing and resolving
issues, as well as a general managerial role in setting each Single hearing. Regardless, the best
metaphor for the roles of judge and advocates in modern commercial litigation in both civil and
common law systems is that of a committee in which there are representatives for each different
interest(the advocates) and a chairperson (the judge) responsible for the orderly exploration and
resolution of the controversy. Further, in modern litigation, there are often more than two Parties
involved at times several parties and consequently the resolution frequently becomes a
combination of adjudication, mediation and negotiation. Thus, some typical elements of the
advocate's role in modern commercial litigation must further be considered.
1) Selection of forum
In this context, the initiative is clearly with the parties. Usually, the injured party selects the
forum, barring an enforceable forum selection clause in the contract between the parties. As all
realistic analysts of civil procedural realize, this choice is fraught with consequences and affects
the resolution of a legal controversy. However, the judge takes no part in the initial choice of
forum, despite its importance to the ultimate resolution of the dispute. Traditionally, the judge
has only the negative authority to refuse jurisdiction whenever the initiating party has chosen an
improper or inappropriate forum.
2) Formulation of Claims and Defences
A rule generally found in most legal systems is that the advocate for the plaintiff formulates the
claims to be considered, while the respondent's counsel bears a corresponding responsibility to
formulate the defences and counterclaims, if applicable These tasks must be accomplished in the
context of the pleadings or, as in the American system, in the pre-trial order that follows the
pleadings Similar chances to formulate or change the claims or defences after the pleadings exist
also in some European systems, for instance the Italian legal system. In the Italian system, the
defendant's advocate can actually delay the formulation of the response well after the initial
phase, triggering either mutual options to respond on the side of his opponent lawyer for the
plaintiff, and a virtually endless postponement of the actual framing of the case in view of its
definition by the judge16. On the other hand, the parties' advocates have almost as much room for
this kind of strategic choices in most of the other European legal systems, although with a lesser
scope of inherent powers on the side of lawyers. This is also the case in France, and to an even
greater degree in Germany. The provisions on this subject in the French Nouveau Code de
Procedure Civil provide the advocate-within the boundaries of basic fondcment serieux of each
pleading or request with an extremely wide range of strategic choices and processional
undertakings. The lawyer's role is of fundamental value in the stages of mise en oeuvre de action
and deroulement de /'instance, although the lawyer acts with constant judicial supervision aimed
at fully carrying out principles "de la contradiction" and "de la cooperation" between the parties'
advocates. Likewise, the German ZPO (the German code of civil procedure) grams the lawyer a
similar range of options through the \\'ritten complaint (the Klage), which controls the
"procedural initiative" in order to properly shape the complaint at the outset of the litigation
though the judge, called the Hinwcispflicht.
Convergence of Modern Procedural Systems
In the context of the managerial role of the judge in civil litigation, a noteworthy convergence of
the two systems has taken place17. This convergence is, of course, more noticeable in some areas
of the civil practice, such as that of the modern commercial disputes. These disputes most often
involve complicated issues that involve multiple and interdependent questions of law and fact.
Further, they tend to involve highly technical issues, sometimes of physical or medical science,
finance, or business or professional judgment that may require the use of expert testimony, such
as scientific tests, accounting analyses, or problems of foreign law and language. When issues of
this kind are involved, the advocates have an inevitable advantage over the judges at the outset of
the litigation. This, of course, is not because they are more intelligent or better informed in such
matters than the judges, but rather because in these circumstances clients seek out advocates who

16
Angelo Dondi, Abuse of Procedural Rights Regional Report for Italy and France in Abuse of procedural rights
17
The mutual influence and mixing of civil law and common law elements has created mixed legal systems in
several parts of the world, like Scotland, South Africa, Quebec, Louisiana, Puerto Rico, Sri Lanka, etc
are especially adept in handling cases involving such complexities. In any event, when the
underlying dispute is complicated, the judges will necessarily be more dependent on the
advocates than when the court is dealing with a familiar and routine type of dispute. More and
more, commercial litigation tends to involve complexities of the kind mentioned above. Routine
disputes may more readily be settled, so modern commercial litigation plays a greater pan in
shaping the role of the advocates because they have more interaction with the judges, whatever
the legal system in which these disputes are adjudicated. Thus, the very subject matter with
which modern procedural systems must most frequently contend seems to influence the way in
which the professional participants function. Since every procedural system faces similar
problems when dealing with modern commercial litigation, the convergence of the procedures
between common law and civil law systems has become an unquestionable and steady reality.
Consequently, the actual conduct of litigation in modern systems looks more and more similar,
whatever the tradition from which they derive. In fact, these cases require active and creative
initiatives by the advocates, as well as active, attentive, and flexible engagement on the part of
the judges. Of course this does not mean that the differences between the systems are fully
erased. Though the general trend shows the systems are growing together, there are still areas in
which civil and common law procedures continue to diverge. A noteworthy example is
represented by a recent Italian procedural reform enacted in January 2004, concerning the
alternative dispute resolution in the adjudication of commercial cases. Surprisingly enough, the
whole philosophy of the new Italian rules is founded on an ideal of a sharp restriction of the
judicial powers, in view of bringing them back to their allegedly original and inner feature of
"sheer decisional function ". In order to attain this goal, the judge's role has been restricted to a
mere late appearance past the stages of such importance as the commencement of the action and
the pre-trial process (with all the possible discovery activities included). The judge is involved
only at the trial hearing; the remaining function left to the judge is conceived as limited to
adjudicating the case, while the preparation of the factual and legal terms of adjudication are
exclusively performed by the lawyers of the parties. With no hint of earlier judicial intervention
in the proceeding whatsoever, the model conceived by the Italian legislators seems more apt to
revitalize ancient conceptions about the mutual apportionment of powers between professional
participants such as judges and advocates, adopting the approach of the nineteenth century, rather
than facing the complex reality of modern civil cases. This seems even worse because it is
conceived to regulate commercial litigation However, the philosophy of the Italian new
procedural rules for commercial cases is an exceptional and, to the best of our knowledge,
isolated event in the perspective of solving the many problems connected to the management of
controversies of this kind.

CONCLUSION
The above-mentioned similarities in terms of the complex questions of fact and law that these
disputes involve, short of the legal system in which the single case is to be adjudicated, seem to
move powerfully towards an approximation or a convergence of procedural law. A basic feature
of this progression is an awareness that these cases, while requiring active and creative initiatives
by the advocates, are in absolute need of an even more powerful engagement and pushing of
initiatives by judges. The examination of common law and civil law reveals that there are more
similarities than differences between these two legal systems. Despite very different legal
cultures, processes and institutions, common law and civil law have displayed a remarkable
convergence in their treatment of most legal issues. Under the contemporary pressure of
globalisation, modern civil law and common law systems show several signs of convergence.
Many of the differences that used to exist between the civil law and common law systems are
now much less visible due to the changes which have occurred both in common law and civil
law. In the common law, regulatory law has achieved a greater importance leaving less room for
the courts, while in the civil law the role of the courts in the creation of law has greatly
increased. As a result of these processes going to opposite directions, many of the differences
between common law and civil law look now more like nuances rather than major differences.
The differences which exist between civil law and common law should not be exaggerated. It is
also important to note that differences on many issues exist both among civil law and among
common law countries. The differences between civil law and common law systems are more in
styles of argumentation and methodology than in the content of legal norms. By using different
means/ both civil law and common law are aimed at the same goal and similar results are often
obtained by different reasoning. The fact that common law and civil law, despite the use of
different means arrive at the same or similar solutions is not surprising, as the subject-matter of
the legal regulation and the basic values in both legal systems are more or less the same. While a
certain rapprochement between civil law and common law systems is evident and this tendency
will continue, there are still important differences which will continue to exist for an indefinite
period.
The author has given several examples of these differences between the common law and civil
law systems. An awareness of these differences is necessary for any lawyer dealing in
international law. The differences in some areas are substantial and the parties contemplating
starting proceedings in another legal system are advised to check those differences before taking
action. The aim of author was not to judge which legal system is better: civil law or common
law. The task of lawyers should not be to defend their legal systems, but to improve them. Each
legal system may have some advantages and deficiencies. If a foreign legal system has some
advantages, why not incorporate them in our domestic legal system? In that way the resulting
convergence of the two legal systems can only contribute to their common goal of creating a fair
and just legal system which can provide legal certainty and protection to all citizens and legal
persons.

FOURTH COMPONENT: CASE COMMENT

 TOPIC- PROFESSIONAL MISCONDUCT
Case details:-
Case Name - “Hikmat Ali Khan vs Ishwar Prasad Arya & Ors”
Case Number - 28 January, 1997 SC 864
CASE SUMMARY
In the case of Hikmat Ali khan v. Ishwar prasad arya and ors, Ishwar Prasad Arya, respondent
No. 1, was registered as an advocate with the Bar Council of Uttar Pradesh and was practising at
Badaun. An incident took place on May 18, 1971 during lunch interval at about 1.55 p.m., in
which respondent No. 1 assaulted his opponent Radhey Shyam in the Court room of
Munsif/Magistrate, Bisauli at Badaun with a knife. A pistol shot is also said to have been fired by
him at the time of incident. After investigation he was prosecuted for offences under Section 307
of the Indian Penal Code and Section 25 of the Arms Act. The 1st Temporary Civil and Sessions
Judge, by his judgment dated July 3, 1972, convicted him of the said offence and sentenced him
to undergo rigorous imprisonment for three years for the offence under Section 307, I.P.C. and
for a period of nine months for offence under Section 25 of the Arms Act.

On the basis of the said complaint disciplinary proceedings were initiated against respondent No.
1 by the Bar Council of U.P. he was found guilty of gross professional misconduct by taking the
benefit himself of a forged and fabricated document which had been prepared at his behest. The
Disciplinary Committee of the Bar Council of U.P. directed that respondent No. 1 be debarred
from practising as an advocate for a period of two years from the date of the service of the order.
Respondent No. 1 filed an appeal, the said appeal was allowed by the Disciplinary Committee of
the Bar Council of India by order dated June 8, 1984 and the order of the Disciplinary
Committee of the Bar Council of U.P. dated January 30, 1982 was set aside on the view that
there was no material on the basis of which it could reasonably be held that respondent No. 1 had
prepared the document which was subsequently found forged. Further the submission of Shri
Markendaya was that having regard to the gravity of the misconduct of respondent No. 1 in
assaulting his opponent in the Court room with a knife and his having been committed the
offence under Section 307, I.P.C. and his being sentenced to undergo rigorous imprisonment for
three years in connection with the said incident, the punishment of removal of the name of
respondent No. 1 from the roll of advocates should have been imposed on him and that the
Disciplinary Committee of the Bar Council of U. P. was in error in imposing the light
punishment of debarring respondent No. 1 from practising as an advocate for a period of three
years only and that this was a fit case in which the appeal filed by the appellant should have been
allowed by the Disciplinary Committee of the Bar Council of India. It was held that the acts of
misconduct found established are serious in nature. Under Sub-section (3) of Section 35 of the
Act the Disciplinary Committee of the State Bar Council is empowered to pass an order
imposing punishment on an advocate found guilty of professional or other misconduct. Such
punishment can be reprimand [Clause (b)], suspension from practice for a certain period [Clause
(c)] and removal of the name of the advocate from the State roll of advocate [Clause (d)],
depending on the gravity of the misconduct found established. The punishment of removal of the
name from the roll of advocates is called for where the misconduct is such as to show that the
advocate is unworthy of remaining in the profession. In this context, it may be pointed out that
under Section 24(A) of the Act a person who is convicted of an offence involving moral
turpitude is disqualified for being admitted as an advocate on the State roll of advocates. This
means that the conduct involving conviction of an offence involving moral turpitude which
would disqualify a person from being enrolled as an advocate has to be considered a serious
misconduct when found to have been committed by a person who is enrolled as an advocate and
it would call for the imposition of the punishment of removal of the name of the advocate from
the roll of advocates. In the instant case respondent No. 1 has been convicted of the offence of
attempting to commit murder punishable under Section 307, IPC. He had assaulted his opponent
in the Court room with a knife. The gravity of the misconduct committed by him is such as to
show that he is unworthy of remaining in the profession. The said misconduct, therefore, called
for the imposition of the punishment of removal of the name of respondent No. 1 from the State
roll of advocates and the Disciplinary Committee of the Bar Council of U. P., in passing the
punishment of debarring respondent No. 1 from practising for a period of three years, has failed
to take note of gravity of the misconduct committed by respondent No. 1. Having regard to the
facts of the case the proper punishment to be imposed on respondent No. 1 under Section 35 of
the Act should have been to direct the removal of his name from the State roll of advocates. The
appeal filed by the appellant, therefore, deserves to be allowed. Finally court held that the
respondents name should be removed from the rolls.
HOW LAW SHAPED OVER THE TOPIC ‘PROFESSIONAL MISCONDUCT’

Advocacy is a noble profession and an advocate is the most accountable, privileged and erudite
person of the society and his act are role model for the society, which are necessary to be
regulated. Professional misconduct is the behaviour outside the bounds of what is considered
acceptable or worthy of its membership by the governing body of a profession. Professional
misconduct refers to disgraceful or dishonourable conduct not befitting an advocate. Chapter V
of the Advocate Act, 1961, deals with the conduct of Advocates. It describes provisions relating
to punishment for professional and other misconducts. Section 35(1) of the Advocate Act, 1961,
says, where on receipt of a complaint or otherwise a State Bar Council has reason to believe that
any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case
for disposal to it disciplinary committee. Generally legal profession is not a trade or business, it’s
a gracious, noble, and decontaminated profession of the society. Members belonging to this
profession should not encourage deceitfulness and corruption, but they have to strive to secure
justice to their clients. The credibility and reputation of the profession depends upon the manner
in which the members of the profession conduct themselves. It’s a symbol of healthy relationship
between Bar and Bench. The Advocates Act, 1961 as well Indian Bar Council are silent in
providing exact definition for professional misconduct because of its wide scope, though under
Advocates Act, 1961 to take disciplinary action punishments are prescribed when the credibility
and reputation on the profession comes under a clout on account of acts of omission and
commission by any member of the profession.
The Supreme Court has, in some of its decisions, elucidated on the concept of ‘misconduct’, and
its application. In Sambhu Ram Yadav v. Hanuman Das Khatry, a complaint was filed by the
appellant against an advocate to the Bar Council of Rajasthan, that while appearing in a suit as a
counsel, he wrote a letter stating that the concerned judge, before whom the suit is pending
accepts bribes, and asked for Rs. 10,000 to bribe and influence the judge to obtain a favourable
order. The Disciplinary Committee, holding that the advocate was guilty if “misconduct”, stated
that such an act made the advocate “totally unfit to be a lawyer.” The Supreme Court, upholding
the finding of the Rajasthan Bar Council held that the legal profession is not a trade or business.
Members belonging to the profession have a particular duty to uphold the integrity of the
profession and to discourage corruption in order to ensure that justice is secured in a legal
manner. The act of the advocate was misconduct of the highest degree as it not only obstructed
the administration of justice, but eroded the reputation of the profession in the opinion of the
public. In another case, Noratanman Courasia v. M. R. Murali the Supreme Court explored
the amplitude and extent of the words “professional misconduct” in Section 35 of the Advocates
Act. The facts of the case involved an advocate (appearing as a litigant in the capacity of the
respondent, and not an advocate in a rent control proceeding) assaulted and kicked the
complainant and asked him to refrain from proceeding with the case. The main issue in this case
was whether the act of the advocate amounted to misconduct, the action against which could be
initiated in the Bar Council, even though he was not acting in the capacity of an advocate. It was
upheld by the Supreme Court that a lawyer is obliged to observe the norms of behaviour
expected of him, which make him worthy of the confidence of the community in him as an
officer of the Court. Therefore, in spite of the fact that he was not acting in his capacity as an
advocate, his behaviour was unfit for an advocate, and the Bar Council was justified in
proceeding with the disciplinary proceedings against him. It may be noted that in arriving at the
decision in the case, the Supreme Court carried out an over-view of the jurisprudence of the
courts in the area of misconduct of advocates. It reiterated that the term “misconduct” is
incapable of a precise definition. Broadly speaking, it envisages any instance of breach of
discipline. It means improper behaviour, intentional wrongdoing or deliberate violation of a rule
of standard of behaviour. The term may also include wrongful intention, which is not a mere
error of judgment. Therefore, “misconduct”, though incapable of a precise definition, acquires its
connotation from the context, the delinquency in its performance and its effect on the discipline
and the nature of duty. In N.G. Dastane v. Shrikant S. Shind, where the advocate of one of the
parties was asking for continuous adjournments to the immense inconvenience of the opposite
party, it was held by the Supreme Court that seeking adjournments for postponing the
examination of witnesses who were present without making other arrangements for examining
such witnesses is a dereliction of the duty that an advocate owed to the Court, amounting to
misconduct.
Ultimately, as it has been upheld and reiterated that “misconduct” would cover any activity or
conduct which his professional brethren of good repute and competency would reasonably regard
as disgraceful or dishonourable. It may be noted that the scope of “misconduct” is not restricted
by technical interpretations of rules of conduct. This was proven conclusively in the case of Bar
Council of Maharashtra v. M.V. Dahbolkar. The facts under consideration involved advocates
positioning themselves at the entrance to the Magistrate’s courts and rushing towards potential
litigants, often leading to an ugly scrimmage to snatch briefs and undercutting of fees. The
Disciplinary Committee of the state Bar Council found such behaviour to amount to professional
misconduct, but on appeal to the Bar Council of India, it was the Bar Council of India absolved
them of all charges of professional misconduct on the ground that the conduct did not contravene
Rule 36 of the Standards of Professional Conduct and Etiquette as the rule required solicitation
of work from a particular person with respect to a particular case, and this case did not meet all
the necessary criteria, and such method of solicitation could not amount to misconduct. This
approach of the Bar council of India was heavily reprimanded by the Supreme Court. It was held
that restrictive interpretation of the relevant rule by splitting up the text does not imply that the
conduct of the advocates was warranted or justified. The standard of conduct of advocates flows
from the broad cannons of ethics and high tome of behaviour. It was held that “professional
ethics cannot be contained in a Bar Council rule nor in traditional cant in the books but in new
canons of conscience which will command the member of the calling of justice to obey rules or
morality and utility.” Misconduct of advocates should thus be understood in a context-specific,
dynamic sense, which captures the role of the advocate in the society at large.

THE BODY OR AUTHORITY EMPOWERED TO PUNISH FOR PROFESSIONAL OR

OTHER MISCONDUCT
1. STATE BAR COUNCIL AND ITS DISCIPLINARY COMMITTEE
Organization- Section 35 of the Advocates Act makes it clear that on receipt of a complaint or
otherwise a State Bar Council has reason to believe that any advocate on its role has been guilty
of professional or other misconduct, it shall refer the case for its disposal to disciplinary
committee. It is one of the functions of the State Bar Council to entertain and determine the cases
of misconduct against the advocate on its roll. Section 9 of the Act requires the Bar Council to
constitute one or more disciplinary committees. Each of such committee is required to consist of
three persons of whom two shall be persons elected by the council from amongst its members
and other shall be a person co-opted by the council from amongst its member advocates who
possess the qualifications specified in the provisions to subsection (2) of section 3 and who are
not members of council and the senior most advocate amongst the members of the disciplinary
committee shall be the chairman thereof.
Procedure- Section 35 provides that after giving the advocate concerned and the Advocate-
General an opportunity of being heard, the disciplinary committee of a State Bar Council may
make any of the following orders-: 1. dismiss the complaint or where the proceedings were
initiated at the instance of the State Bar Council, direct that the proceedings be filed; 2.
reprimand the advocate; 3. suspend the advocate from practice for such period as it may deem
fit; 4. remove the name of the advocate from the State roll of advocates. It is that when the
advocate is suspended from the practice under the aforesaid clause (3), he shall, during the
period of suspension, be debarred from practicing in any Court or before any authority or person
in India.
2. BAR COUNCIL OF INDIA AND ITS DISCIPLINARY COMMITTEE
Organization- Section 36 of the Advocates Act empowers the Bar Council of India to refer, in
certain circumstances, the case for disposal to its disciplinary committee. Section 9 provides that
the a Bar Council shall constitute one or more disciplinary committees, each of which shall
consist of three persons of whom two shall be persons elected by the Council from amongst its
members and the other shall be a person elected by the council amongst advocates who possess
the qualifications specified in the provision to sub-section (2) of Section 3 and who are not
members of the council and the senior most advocate amongst the members of disciplinary
committee shall be the chairman thereof.
Powers-: Section 42 deals with the powers of the disciplinary committee of a Bar Council. The
provisions of Section 42 have already been stated in context of powers of the disciplinary
committee of the State Bar Council. Section 42-A makes it clear that the provisions of Section 42
shall, so far as may be, apply in relation to the disciplinary committee of the Bar Council of
India. Section 43 makes it clear that the disciplinary committee of the Bar Council of India may
make such order as to the costs of any proceedings before it as it may drew fit and any such order
shall be executable as if it were an order of the Supreme Court.

CRITICAL ANALYSIS
In the given case, the court stated that the bar council had failed to appreciate the gravity of the
offence committed by the respondent and the said misconduct called for the imposition of the
punishment of removal of the name of the respondent from the state roll of advocates on which
Supreme court acted on and respondent’s name was struck from State roll of advocates.
 FIFTH COMPONENT: HOW THE JUDGES OF INDIAN COURTS ARE
TO BE ADDRESSED
INTRODUCTION:-
As the words “My Lord” and “Your Lordship” are relics of a Colonial past, it is proposed to
incorporate the above rule showing respectful attitude to the Court. India, upon independence,
opted for continuity in matters of the judiciary. HJ Kania and his team effortlessly transitioned
from judges of the Federal Court to our Supreme Court. An institution which was inaugurated in
the Chamber of Princes chose to continue with the regal traditions the British had superimposed
on India’s judicial system. This not only included the costume: robes and bands, but also the
mode of address: Your Lordship. As it was years before India would get her first lady justice, the
inherent gender contradiction of such an address was the last thing on anybody’s mind.

Two Delhi High Court judges, Justices Ravindra Bhat and S Muralidhar, took the legal fraternity
by storm when their daily cause lists starting carrying a request to the Bar to refrain from the
colonial form of address and instead to address the Court as “your honour” or “sir”.

This was not the first attempt by a Delhi High Court justice to move the system away from the
colonial convention. When a Chief Justices’ Conference was held in 1971, Justice Rajinder
Sachar, then a judge of the Delhi High Court, had prevailed upon his erstwhile colleague from
the Punjab and Haryana High Court, then Chief Justice of India Sarva Mitra Sikri, to include a
discussion on the mode of address of constitutional court justices. The conference resolved that
judges should be addressed as “Your Honour”

As with many other practices, India inherited courtroom etiquettes from the British. In other
words, they are a relic of colonial rule. In the UK, judges of the Court of Appeals and the High
Court are addressed as ‘My Lord’ or ‘My Lady’; Circuit judges as ‘Your Honour’; Magistrates
as ‘Your Worship’, or ‘Sir’ or ‘Madam’; and District judges and Tribunal judges as ‘Sir’ or
‘Madam’.

Bar Council of India Rules:-

The Advocates Act of 1961, under section 49(1) (c), empowers the Bar Council of India to make
rules on professional and etiquette standards to be observed by advocates. The Bar Council of
India makes the rules on professional standards to be observed by advocates. To address this
issue, a Resolution by the BCI in 2006 added Chapter IIIA to Part VI of the Rules. The provision
and its explanation read as follows:

“CHAPTER-IIIA3: To address the Court

Consistent with the obligation of the Bar to show a respectful attitude towards the Court and
bearing in mind the dignity of Judicial Office, the form of address to be adopted whether in the
Supreme Court, High Courts or Subordinate Courts should be as follows: ‘Your Honour’ or
‘Hon’ble Court’ and in Supreme Court & High Courts and in the Subordinate Courts and
Tribunals it is open to the Lawyers to address the Court as ‘Sir’ or the equivalent word in
respective regional languages.”

CONTROVERSY-

The subject of court etiquette raised in Supreme Court bench headed by Chief Justice (CJI) SA
Bobde objected to a petitioner’s use of ‘Your Honour’.

The CJI sharply told the petitioner, a law student, that he is not addressing the Supreme Court of
United States, but the Supreme Court of India.

“When you call us ‘Your Honour’, you either have the Supreme Court of United States or the
Magistrate in mind. We are neither,” CJI Bobde said.

The student apologised and said that he would henceforth use ‘My Lords’. “Whatever. We are
not particular what you call us. But don’t use incorrect terms,” came the reply.

JUDGES ADDRESSAL IN INDIA

Interestingly, while the 2006 notification discouraged the use of “My Lord” and “Your
Lordship”, it prescribed “Your Honour” or “Hon’ble Court” as an acceptable way for addressing
the Supreme Court & High Courts, and “Sir” in Subordinate Courts and Tribunals.

However, the Bar Council of India issued a statement, saying that it had passed a resolution in
2019 advising advocates not to use it in High Courts and in the top court to maintain the
“graciousness and dignity” of the court. It is not clear if the Rules had been amended in line with
the resolution. The BCI would like to clarify that as far as back on 28th September, 2019 on the
request made by Office-Bearers of Bar Association of some High Courts with regard to the
Advocates addressing the court, it was resolved that as per mostly preferred and prevalent
practice, lawyers of the country be requested to address the Hon’ble Judges of various High
Courts and Supreme Court as ‘My Lord’ or ‘Your Lordships’ or ‘Hon’ble Court’, while Lawyers
of Subordinate Courts, Tribunals and other Forums may address the Court as ‘Your Honour’ or
‘Sir’ or the equivalent word in respective regional languages,” BCI chairperson Manan Mishra
said in a statement.

In 2014, 85-year-old lawyer Shiv Sagar Tiwari had his writ petition listed before the Supreme
Court. Coincidentally, the bench also included Justice SA Bobde, but was presided by Justice HL
Dattu. The order sheet of January 6, 2014, is terse and does not betray what actually transpired in
court. It reads,

“Permission to appear and argue in-person is allowed. The writ petition is dismissed.”

In fact, we learn from contemporaneous reports that the Court was considering Tiwari’s writ
petition seeking a ban on the use of “Your Lordship” as being “a relic of colonial era and a sign
of slavery”. The matter was first listed before a bench of Chief Justice P Sathashivam and
Justice Ranjan Gogoi. When Tiwari made a scandalous allegation that one of his petitions in the
Supreme Court had been dismissed because he had not used the honorific “Lordship’, Justice
Gogoi recused himself and the case was directed to be listed before another bench.

The Court heavily came down on Tiwari.

“When did we say it is compulsory? You can only call us in a dignified manner. To address the
court what do we want? Only a respectable way of addressing. You call us your honour, it is
accepted. You call lordship it is accepted. How can this negative prayer be accepted by us? Don’t
address us as Lordship. We don’t say anything. We only say address us respectfully. How can
we direct the high courts on your prayers? It is obnoxious. It is the choice of the lawyer to
address the court. Why should we say that brother judges should not accept being addressed as
lordship? We have not taken exception when you call us ‘Sir.’”

Across the Wagha Border, a similar attempt was made in the Lahore High Court only to meet the
same fate. In 2012 in Mallik Allah Yar Khan’s case, the petitioner referred to Presidential Order
No 15 of 1980 passed by Zia-ul-Haq which had directed the discontinuation of the use of the
expression ‘milord’ in the context of judges. It was also contended that such a term implied
conferment of divine status on humans other than the Creator, which was contrary to the State
religion. The Court dismissed the petition by referring to various dictionary meanings of the term
to conclude that there was nothing ‘godly’ in the term and it was only to refer to the ‘qualities
ability, nobility and learning” of the judges

While the Rules permit the use of “Your Honour”, the preference shown by the CJI in being
addressed by anything other than “Your Honour” has put lawyers in a fix.
 SIXTH COMPONENT: CONTEMPT OF COURTS ACT, 1971
Any offence has some exceptions that must be met in order for the victim to be held responsible.
There are some requirements for contempt of court, which are as follows: In the case of Civil
Contempt, disobedience to every kind of court proceeding, including its orders, judgments,
decrees, and so on, should be done 'wilfully.' The most critical element of criminal contempt is
‘publication,' which may take the form of spoken or written sentences, signs, or visual
representation. The court should issue a "legal order," which should be in the respondent's
"intelligence." Contemporize behaviour should be intentional, as well as a direct disregard for the
court's order. Various kinds of Contempt: According to Lord Hardwick, there are three broad
types of contempt of court:

1. Creating a scandal in the courtroom.

2. Abusing those who are involved in the case in front of the judge.

3. Prejudicing the public's perception of the case before it is considered.

In India, however, contempt is divided into two categories:

1. Civil contempt

2. Criminal contempt

Civil Contempt is a legal term that refers to Civil contempt is described as willful disobedience
to any judgement, decree, direction, order, writ, or other process of a court, or willful violation of
an undertaking given to a court, according to section 2(b) of the Contempt of Courts Act, 1971.

Criminal contempt: Criminal contempt, according to section 2(c) of The Contempt of Courts
Act, 1971, is defined as the publication (whether by word, spoken or written, or by signs, or by
visible representation, or otherwise) of any matter or the doing of any other act whatsoever that:
i) Scandalizes or tends to scandalise, or lowers or tends to lower the authority of, any court, or ii)
Prejudices or interferes or tends to interfere with the administration of justice.

DEFENCE
Defences available to an advocate are given under section 3 to 8 of Contempt of Courts Act,
1971.

According to Section 3 of the Contempt of Courts Act, 1971 innocent publication and
distribution of matter is not contempt. It says that a person is not guilty of contempt for
publication of any matters which interferes or may interfere with the administration of justice if
such person was not aware that the matter was pending before the court.

Further, it says that any matter published relating to a civil or criminal proceeding will not
constitute contempt if such proceeding is not pending before the court.

Knowledge about the pendency is an essential pre-condition for holding a person guilty of
contempt.

Therefore, a publication and distribution to be considered innocent under the section must fulfil
the following condition:

(i) The person accused of an offence, at the time of publication, had no reasonable grounds to
believe that the proceeding was pending.

(ii) The proceedings are not pending at the time of publication.

(iii) The person accused of distribution of the contemnous publication, had no reasonable
grounds, at the time of distribution of such material to believe, that the publication contains
contemnous matters or something which was likely to be in contempt of court.

Under Section 4 a person is not guilty of contempt for “fair and accurate report of a judicial
proceeding”. This is crucial since every citizen has a right to know about a judicial proceeding to
the extent that it does not invade the privacy of any party related to the proceeding.

The judicial proceeding for the purpose of section 4 means day to day proceeding of the court.

Purpose of this section can be said to be the basic principle of any legal system that justice
should be administered in public. All common law countries follow the maxim Ignorantia Juris
non-excusat which means ignorance of the law is no excuse. Reporting of judicial proceedings
can be said to act as a remedy for this principle.
Under Section 5, fair criticism on the merits of any case that has been finally adjudicated does
not constitute contempt. Fair criticism can be said to be criticism which does not have any
malicious intent or done without any reasonable justification. In Re: S. Mulgaokar vs. Unknown
(1978) Court held that judiciary cannot be immune from fair criticism, and contempt action is to
be used only when an “obvious misstatement” with “malicious intent” seeks to bring down
public confidence in the courts or seeks to influence the courts.

In Radha Mohan Lal v. Rajasthan High Court (2003), the court held that: 

advocacy touches and asserts the primary value of freedom of expression. It is a practical
manifestation of freedom of speech.

This section embodies in itself the essence of free speech under Article 19 of the constitution and
freedom of the press.

Under Section 6 any statement made in good faith concerning a presiding officer will not make a
person guilty of contempt.

Under Section 7 fair and accurate reporting of a proceeding of a court “in chambers or in the
camera” is not contempt except when the publication of publication is prohibited by a specific
law or when the court on grounds of public policy specially prohibits the publication of a
proceeding or if court prohibits publication on the ground of “public order” or “the security of
the State” or when the information relates to a secret process, discovery or invention which is an
issue in the proceedings.

Section 4 deals with reporting of any judicial proceeding before the court, whereas Section 7
specifically deals with processing either in the chambers or in-camera proceeding. In-camera
proceedings are court proceedings conducted in private in the absence of public and press.

Further Section 8 says that any other bona fide and valid defences cannot be held to be invalid
just because such defences are not available merely because of the provisions of Contempt of
Court Act, 1971.
 SEVENTH COMPONENT: ADVOCATE ACT 1961
The Advocates Act, 1961 was enacted to carry out the recommendations of the All India Bar
Committee (as supported by the Law Commission's fourteenth Report in 1955). Except for the
state of Jammu and Kashmir, the Act encompasses all of India. The aim of the Act is to update
and consolidate the laws governing legal practitioners, as well as to form the State Bar Council.
The Act's aim is to organize and form a single class of legal professionals known as
"Advocates." Second, it is intended to provide a standardized Bar qualification. It also sought to
create an All India Bar Council as well as state bar councils. “An advocate registered under the
provisions of this Act." The Legal Practitioners Act had separate types of legal practitioners
before this Act. Advocates, attorneys, vakils, and other professionals were among them. These
groups were abolished by the Advocates Act, which recognized only one type of advocate.
The Advocates Act of 1961 outlined the creation of the Bar Council of India as a self-governing
body with specific responsibilities and functions.

On the basis of merit, they are listed as "Senior Advocates" or "Other Advocates." With the
advocate's permission, the High Court or Supreme Court grants the status of Senior Advocate.
Only advocates who are on the "General roll" are allowed to practice in the Supreme Court, as
well as any other court, tribunal, or other entity where an advocate is permitted to practice. The
Indian Bar Council is a legal body. It has the legal authority to possess both movable and
immovable property, as well as to sue and be sued. The Indian Bar Council can also enter
international organizations such as the International Bar Organization. The Bar Council has been
given the authority to make regulations in the following areas:
The ballot system will be used to elect members of the Bar Council, as well as to specify the
conditions by which citizens will vote. The procedure for electing the President and Vice
President, In the event of a disagreement about the legitimacy of the votes, the Bar Council's
decision will be final.
 Vacancies in the Bar Council must be filled.
 The President's and Vice President's powers and obligations.
  Maintaining financial records and performing audits.
 Control of the Bar Council's funds.
 Summoning for meetings.

The provisions of Section 35 of the Advocates Act deal with professional misconduct of lawyers
and advocates in India, which read as:

A person is found guilty of professional misconduct; it shall refer the case to a disciplinary
committee, shall fix a date of hearing and issue a show cause notice to the Advocate and the
Advocate General of the State. The disciplinary committee of the State Bar Council, after being
heard of both the parties, may:

1. Dismiss the complaint, or where the proceedings were initiated at the instance of the
State Bar Council, directs that proceedings be filed;
2. Reprimand the advocate;
3. Suspend the advocate from practice for such a period as it deems fit;
4. Remove the name of an advocate from the state roll of advocates.

Misconduct is of infinite variety; this expression must be understood in a broad meaning, such
that it extends the meaning under natural law, and there is no justification for restricting their
natural meaning. Section 49 of the Advocate Act empowers the Bar Council of India to frame
rules and standards of professional misconduct. Under the Act, no person has a right to make
advertisement or soliciting; it is against advocate’s code of ethics. He is also not entitled to any
advertisement through circulars, personal communications or interviews, he is not entitled to
demand fees for training and to use name/service for unauthorized purposes.