IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.27916 OF 2019 (GM-RES) BETWEEN:
B N SHIVANNA S/O LATE NANJUNDAIAH AGED 49 YEARS RESIDING AT NO 5 SUJATHA COMPLEX NO 1/1 1ST MAIN 1ST CROSS GANDHINAGAR BANGALORE – 560 009 (BY SMT.LAKSHMY IYENGAR, SR. COUNSEL FOR SMT.MANJULA DEVI, M G, ADV.) AND:
1. KARNATAKA STATE BAR COUNCIL OLD KGID BUILDING DR B R AMBEDKAR ROAD BANGALORE – 560 001 REPRESENTED BY ITS SECRETARY 2. M/S ADVANTA INDIA LTD NO 31 SAROJINIDEVI ROAD SECUNDERABAD A P – 522901 REPRESENTED BY ITS MANAGING DIRECTOR/DIRECTORS (BY SRI.NATARAJ G, ADV. FOR R1, SRI.B K SAMPATH KUMAR, ADV. FOR R2) … PETITIONER … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ANNEXURE-A THE NOTIFICATION DATED 9.10.2017 THE R-1 KARNATAKA STATE BAR COUNCIL; AND ETC THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Smt.Lakshmy Iyengar, learned Senior counsel for Smt.Manjula Devi M.G., learned counsel for the petitioner.
Mr.Nataraj G, learned counsel for respondent No.1.
Mr.B.K.Sampath Kumar, learned counsel for respondent No.2.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 226 of the Constitution of India, the petitioner inter alia has assailed the validity of the Notification dated 09.10.2017 as well as the order dated 07.01.2017 passed by the Karnataka State Bar Council. The petitioner also seeks a writ of mandamus directing respondent No.1 to follow the due procedure established under the law.
4. As per the case of the petitioner, the petitioner is an Advocate by profession who completed his law degree from Mysore University in the year 1998 and completed his Master degree in the year 2008 from Kuvempu University. It is averred in the writ petition that the petitioner was enrolled as an Advocate in the year 1998. Thereafter, he resigned from the respondent No.2-Company in the capacity of sales officer of the Company and was appointed as a Legal Advisor of the Company and was residing at Mysuru. It is pleaded in the writ petition that the complaint was filed by the Company against the petitioner before the Karnataka State Bar Council after filing of the suit for recovery of criminal case. On the basis of the complaint filed by the Company by an order dated 31.07.2005, the Karnataka State Bar Council directed removal of the name of the petitioner from the State Roll of Advocates.
5. Being aggrieved, the petitioner filed an appeal before the Karnataka State Bar Council. The aforesaid appeal was allowed in part by an order dated 10.09.2011 and punishment imposed on the petitioner was modified and the petitioner’s licence was directed to remain in suspension for a period of 18 months. Being aggrieved, the petitioner filed a review petition. The aforesaid review petition was allowed by the Karnataka State Bar Council on 11.07.2015 and a direction was issued that fresh enquiry be held by forming a new disciplinary committee. Thereafter, the Company challenged the order dated 10.09.2011, by which the licence of the petitioner was suspended for a peirod of 18 months by way of civil appeal No.2732/2012. It is the case of the petitioner that the aforesaid appeal was withdrawn by the company on the ground that the review was pending. However, subsequently, the same was restored on 05.10.2018. It is the case of the petitioner that the aforesaid appeal viz., Civil Appeal No.2732/12 is pending consideration before the Supreme Court against the order of the Karnataka State Bar Council, by which the petitioner’s licence was suspended for a period of 18 months. It is also pleaded that the order passed in the review by the Karnataka State Bar Council was set aside by the Supreme Court in Civil Appeal No.11113/2016 by an order dated 21.02.2018, as a result of which the order passed by the Karnataka State Bar Council dated 10.09.2011, by which penalty of suspension of licence was imposed of the petitioner for the period of 18 months stood restored.
6. It is pleaded in the petition that subsequently the Company filed another complaint on the same set of facts against the petitioner and on the basis of the aforesaid complaint, by an order dated 08.10.2017 the Karnataka State Bar Council has suspended the licence of the petitioner. The aforesaid order was notified subsequently by the Notification dated 09.10.2017. In the aforesaid factual background, the petitioner has approached this Court.
7. Learned Senior counsel for the petitioner submitted that since the civil appeal is pending before the Supreme Court against an order of the State Bar Council, by which the licence of the petitioner was suspended for a period of 18 months, the respondent No.1 viz., Karnataka State Bar Council had no authority to entertain the complaint against the petitioner on same set of facts. It is also submitted that the petitioner has already undergone the punishment imposed on him as on today. It is further submitted that the Company has no locus to pursue the matter or argue the same. It is also submitted that the initiation of the subsequent proceedings, which has culminated in passing of the order dated 08.10.2017 is barred on the principles of res judicata, double jeopardy, estoppel and lis pendence. In support of her submissions, learned Senior counsel for the petitioner has placed reliance on a decision of High Court of Delhi in ‘UNION OF INDIA VS. VIDEOCON INDUSTRIES LTD’, CS (OS) 3314/2011 and a decision of Supreme Court in ‘BAR COUNCIL OF MAHARASHTRA VS. M.V.DABHOLKAR AND OTHERS’, (1975) 2 SCC 702.
8. Learned counsel for respondent No.1 submitted that the Karnataka State Bar Council has power to impose punishment for misconduct of Advocates under Section 35 of the Advocates Act, 1961 (hereinafter referred to as 'the Act' for short). It is further submitted that in respect of the misconduct of the petitioner, a complaint was received from the Company sometime in July, 2016. On the basis of the aforesaid complaint, the proceedings under Section 35 of the Act were registered against the petitioner and an interim order dated 08.10.2017, was passed by which licence of the petitioner was suspended pending enquiry. However, it is also pointed out that since, enquiry could not be completed within a period of one year, therefore, under Section 36B of the Act, the proceedings stood transferred to the Bar Council of India.
9. Learned counsel for respondent No.2 submitted that after a period of 18 years, the locus of the Company is sought to be challenged for the first time in this proceeding. It is further submitted that Supreme Court has entertained two civil appeals at the instance of the Company and in the aforesaid proceedings, no objection was taken with regard to locus of the petitioner. It is also submitted that a strange argument has been raised on behalf of the petitioner with regard to locus of the petitioner. It is also pointed out that if the Company has no locus then there was no need to implead the Company as respondent No.2 in this writ petition. It is also pointed out that there are no pleadings in the writ petition with regard to the locus of the respondent No.2. It is also pointed out that High Court of Karnataka in exercise of powers under Section 34(1) of the Act have framed the Rules, which are known as Rules laying down “conditions” subject to which an Advocate shall be permitted to practice in the High Court and the Court subordinate thereof. Attention of this Court is also drawn to Rule 11 of the Rules and it is submitted that no Advocate who is found guilty of contempt of court shall be permitted to act or plead in any court unless he is purged himself of contempt. Attention of this Court has been invited to Annexure-R1 annexed with the objections filed on behalf of respondent No.2 as well as to the orders dated 27.08.2017, 17.09.2017 and it is pointed out that on the aforesaid dates, the petitioner did not appear before the Karnataka State Bar Council. Thereafter, an interim order suspending him from practice was passed on 08.10.2017 in view of conviction of the petitioner in criminal contempt petition, which was confirmed by the Supreme Court in ‘B.N.SHIVANNA VS. ADVANTA INDIA LIMITED AND ANOTHER’, (2011) 4 SCC 216. It is further submitted that the aforesaid order has been passed in pursuance of Rule 11 of the Rules.
10. Learned counsel for respondent No.2. while inviting the attention of this Court to Para 11 of the writ petition as well as Annexure-R5 has further pointed out that even though the petitioner had filed W.P.No.58288/2019, yet it’s number is incorrectly mentioned in para 11 of the writ petition as W.P.No.2828/2016. In the writ petition it is further submitted that in W.P.No.28288/2016, the petitioner had sought for quashing of the complaint filed by respondent No.2 bearing KSBCC No.11/2016 and further sought for an interim order for staying further action in pursuance of the complaint. However, the aforesaid fact was not brought to the notice of the Court. It is also argued that in W.P.No.46505/2017, the petitioner had sought for quashing the order dated 08.10.2017 and also sought for an interim order of stay against the aforesaid stay order. This fact also was not brought to the notice of this court in the present writ petition. It is also pointed out that petitioner had filed another writ petition viz., W.P.No.47452/2017 against the order passed by the disciplinary committee of the Karnataka State Bar Council dated 08.10.2017, which was dismissed as withdrawn on 07.11.2017 in view of the consideration made in the remaining petitions. Attention of this Court has also been invited to Annexure-R8 i.e., the objections filed on behalf of the Company and it is pointed out that the petitioner had filed an application in Civil Appeal No.1113/2016 before the Supreme Court, in which the petitioner has sought quashment of order of suspension passed by the Karnataka State Bar Council dated 08.01.2017 and had also sought dismissal of the complaint filed by the Company in D.C.No.11/2017. In this connection, reference has been made to the averments made in para 12 of the writ petition and it is contended that the petitioner has suppressed the fact that the Bar Council of India refused to stay the order passed by the Karnataka State Bar Council and the fact of filing of an application before the Supreme Court on the same cause of action in Civil Appeal No.11118/2016.
11. It is also contended that since, the order passed by this Court was upheld on 14.03.2011 by the Supreme Court, therefore, since the petitioner had not purged the criminal contempt, therefore, he could not have practiced since 2011. It is also pointed out that the aforesaid decision is reported in (2011) 4 SCC 216. It is further submitted that despite the fact that the petitioner was disqualified to appear as an Advocate before any forum, the petitioner has appeared before the Civil Forums. In support of the aforesaid submissions, reference has been made to Anneure-R10 annexed with the objections filed on behalf of the company. Attention has been invited to Annexures-R9 to R14 annexed with the objections filed on behalf of the Company. It is also submitted that a person who seeks equity must approach the Court with clean hands and the principles of res judicata, double jeopardy, estoppel and lis pendence do not apply to the fact situation of the case and the petitioner is guilty of forum shopping. It is also argued that the petitioner instead of purging himself of the crimes and illegalities committed by him, he has committed the following acts among others:
(i) The petitioner has filed private criminal complaints against the Investigating Officers/Police Officers, Witnesses, etc in C.C.No.8178/2002 pending against him so as to intimidate them.
(ii) The petitioner has failed to repay a single rupee to the 2nd respondent out of the huge amount of Rs.71,00,259/- swindled by him from it in the years 2000- 2001.
(iii) The petitioner has not made a single apology in almost 20 years to this Hon’ble Court for criminal contempt or to the 2nd respondent for cheating and looting it. Thus, there is no question of analyzing whether such an apology was heartfelt and sincere or not.
(iv) O.S.No.1575/2002 and C.C.No.8178/2002 are still in the preliminary stages even after 17 years since the petitioner has been stalling and protracting those matters.
(v) The petitioner used to make threatening calls to the counsels appearing for the 2nd respondent in the matters against him during the early 2000’s.
(vi) The petitioner made several scandalous, baseless and inflammatory comments against the counsel appearing for the 2nd respondent in the petitioners filed by him bearing W.P.Nos.58288/2016 and W.P.No.46505/2017, which later came to b expunged by this Hon’ble Court.
(vii) Despite his conviction for criminal contempt by the Apex Court and this Hon’ble Court and for professional misconduct by the Bar Council of India and the 1st respondent, the petitioner has neither acknowledged his misgivings nor atoned for them.
(viii) Filed vakalaths, appeared, acted and pleaded in several matters before several courts during the period of his suspension from practice.
(ix) Mentioned his address as an Advocate in the above petition’s address for service thereby implying that he is practicing despite his suspension at the time of filing the same.
12. It is also pointed out that in the cause title the petitioner has described himself as party in person whereas at page 19 of the writ petition under the heading ‘address for service’, the petitioner himself has described himself as an ‘Advocate’. It is further submitted that the aforesaid act of the petitioner amounts to contempt as on the date of filing of the petition, the order of suspension of his licence is operative. It is also contended that the petitioner has not undergone six months imprisonment imposed on him by the Supreme Court. It is also argued that even though civil appeal may be pending, still the petitioner is under an obligation to purge of himself of the criminal contempt in view of Rule 11 of the Rules. Learned counsel for respondent No.2 has further submitted that the petitioner has fabricated the order Annexure-R2 and was convicted by a division bench of this court for criminal contempt and sentenced to six months imprisonment, which was upheld by the Supreme Court. It is further submitted that the writ petition be dismissed with exemplary costs. In support of the aforesaid submissions, learned counsel for respondent No.2 has placed reliance on decisions of Supreme Court in ‘B.N.SHIVANNA VS. M/S ADVANTA INDIA LTD.,’, (2011) 4 SCC 216, M/S ADVANTA INDIA LTD. VS.
B.N.SHIVANNA’, AIR 2018 SC 1073, ‘PRAVIN C.SHAH VS. K.A.MOHD ALI AND ANOTHER’, (2001) 8 SCC 650, ‘BAR COUNCIL OF INDIA VS. HIGH COURT OF KERALA’, (2004) 6 SCC 311, ‘ AMIT CHANCHAL JHA VS. REGISTRAR HIGH COURT OF DELHI’, (2015) 13 SCC 288, ‘MAHIPAL SINGH RANA, ADVOCATE VS. STATE OF UTTAR PRADESH’, (2016) 8 SCC 335, ‘JAMSHED ANSARI VS. HIGH COURT OF JUDICATURE AT ALLAHABAD & OTHERS’, (2016) 10 SCC 554, ‘JAI SINGH VS. UNION OF INDIA & ORS.’, (1977) 1 SCC 1 and ‘MANISH GOEL VS. ROHINI GOEL’, AIR 2010 SC 1099.
13. By way of rejoinder reply, learned Senior Counsel for the petitioner has invited the attention of this Court to the first and second complaint filed by the company and has contended that complaints are based on identical allegations. It is also urged that locus of company has been questioned in the light of observations made in para 25 of BAR COUNCIL OF MAHARASHTRA supra, and if the aforesaid submission made by learned counsel for Company is considered to be strange, then para 25 of the judgment of the Supreme Court has to be taken as strange. It is pointed out that company has been impleaded as it is a formal party and purging by the petitioner can be done only when the matter attains finality. It is submitted that petitioner can not purge as criminal case is pending, and issue pertaining to purging has to be raised before Supreme Court. It is also pointed out that though in para 11 of the numbers of writ petition have been referred to, however the details of the same have not been furnished. It is argued that this writ petition has been filed after obtaining liberty to file a fresh writ petition and petitioner has not indulged in forum shopping.
14. I have considered the submissions made by learned counsel for parties and have perused the record. It is well settled in law that a prerogative remedy is not available as a matter of course and while exercising such powers, the court will bear in mind the conduct of the party invoking such jurisdiction. If the petitioner does not disclose full facts, or suppresses relevant material facts, the court may dismiss the action without adjudicating the same. This rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court. If material facts are not candidly stated, the very functioning of the court may become impossible [SEE ‘PRESTIGE LIGHTS LTD. VS SBI’, (2007) 8 SCC 449, IN ‘K.D. SHALMA VS SAIL’, (2008) 12 SCC 481] it has been held that if there is no candid disclosure of relevant material facts, the petition may be dismissed at the threshold without considering the merits of the claim. Similar view has been taken in ‘DALIP SINGH VS STATE OF U.P.’, (2010) 2 SCC 114. It has also been held that it is not for litigant to decide what fact is material for adjudicating a case and what is not material and it is the obligation of litigant to disclose facts of a case and leave decision making to the court and mere mention of an order would not be enough disclosure [SEE: ‘BHAKSAR LAXMAN JADHAV VS KARAMVEER KAKASAHEB WAGH EDUCATION SOCIETY, (2013) II SCC 531]. It has also been held that misrepresentation of fact tantamounts to fraud and fraud and justice cannot dwell together [SEE: ‘VENTURE GLOBAL ENGG VS TECH MAHINDRA LTD’, (2018) 1 SCC 656].
15. In the backdrop of aforesaid well settled legal principles, the facts of the case in hand may be examined. Admittedly, the petitioner has been convicted for criminal contempt by a Division Bench of this Court and has bee sentenced to undergo imprisonment for six months vide order dated 18-8- 2004 passed in criminal CCC No.7/2002 and aforesaid order has been upheld by the Supreme Court vide order dated 14-3-2011 i.e., ‘B.N.SHIVANNA VS. ADVANTA INDIA LIMITED AND ANOTHER’, (2011) 4 SCC 216.
The petitioner filed a writ petition namely W.P.No.58288/2016, in which prayer was made for quashment of complaint filed by the company. The petitioner, thereafter, filed another writ petition on or about 10-10-2017 (Annexure-R6), in which order passed by the State Bar Council dated 08.10.2017 was under challenge, by which licence of the petitioner has been suspended. The petitioner, thereafter, filed W.P.No.47542/2017 against order dated 08.10.2017 i.e., the order by which his licence was suspended by State Bar Council which was withdrawn by an order dated 07.11.2017 on the ground that consideration is being made in remaining petitions. The order dated 07.11.2017 reads as under:-
“The petitioner would submits that the petition as instituted is not pressed at this stage in view of the consideration being made in the remaining petitions. He therefore, seeks leave to withdrawn the petition as not pressed.
The petition is accordingly disposed of as withdrawn.”
It is pertinent to note that no liberty was granted to file a fresh writ petition.
16. Thereafter this petition has been filed again seeking the relief of quashment of order of suspension dated 08.10.2017 and notification dated 09.10.2017 issued by State Bar Council. It is pertinent to note that petitioner who is an Advocate has drafted the petition and all the facts are well within the knowledge of the petitioner. However, only pleading with regard to writ petitions filed by the petitioner is found in para 11 which, reads as under:-
“It is very clear as per the order passed by the respondent No.1 Karnataka State Bar Council dated 08.10.2017 the writ petitions have been filed in W.P.No.46505/17 and W.P.No.5828/2016 before the Hon’ble High Court of Karnataka and alternative remedy is available under Section 37 of Advocates Act, the Bar Council of Karnataka which is a statutory authority has not exercised the day to day in accordance with law and also it is an authority who exceeded the jurisdiction by suspending the licence of the petitioner.
17. Though the submission of the petitioner that since, the matter is pending before the Supreme Court and therefore, subsequently the State Bar Council could not have taken any action appears to be attractive at the first blush, yet the same need not be examined by this Court in the instant proceedings as admittedly, the aforesaid issue is pending adjudication in other writ petitions. Thus it is axiomatic that petitioner has merely referred to number of writ petitions namely W.P.No.46505/2017 and W.P.No.58288/2016 (described in the writ petition has W.P.No.5828/2016), without disclosing the reliefs prayed for in the aforesaid writ petitions and has also failed to disclose as to what orders were passed in writ petition. The petitioner also failed to disclose the fact that he had filed W.P.No.47542/2017 challenging the order dated 08.10.2017 passed by State Bar Council, which is also the subject matter of this writ petition, and the aforesaid writ petition was disposed of as withdrawn on the ground that consideration is being made in remaining petitions. The aforesaid writ petition has been withdrawn without seeking leave to file fresh writ petition. Therefore challenge to order dated 08.10.2017 passed by State Bar Council is barred on the principles of constructive resjudicata [SEE: ‘AVINASH NAGRA VS NAVODAYA VIDALAYA SAMITI’, (1997) 2 SCC 534’] Similarly, there is no mention about the writ petition dated 10.10.2017 (Ann R6) and about it’s fate. Thus, it is axiomatic that petitioner who is an Advocate and has himself drafted the petition has failed to disclose full facts and has suppressed material facts. The petitioner has not approached this court with clean hands. Therefore it is not necessary for this court to examine the claim of the petitioner, on merits, as there is no candid disclosure of facts.
18. In view of preceding analysis, no case for interference in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India is made out. Needless to state that petitioner may prosecute the proceeding pending against him or instituted by him in accordance with law.
Accordingly the writ petition is disposed of.
In view of the disposal of the writ petition, all pending applications do not survive for consideration, they stand disposed of.
Sd/- JUDGE SS