Lawyers'
must be diligent and discreet
High
Court Division
(Special Original Jurisdiction)
Contempt Petition No. 24 of 2001
Islamia Automatic Rice Mills Ltd.
Vs
Bangladesh Shilpa Rin Sangstha and others
Before Mr. Justice Syed Amirul Islam
and Mr. Justice Hussain Haider
Date of judgement: 21.07. 2002
Background
Syed Amirul Islam J: This Rule was issued calling
upon the opposite parties to show cause as to why a contempt proceeding
should not be drawn up against them for willful disobedience in handing
over the delivery of the machinery despite order of stay granted by
this Court on 5-11-97 passed in Writ Petition No. 3285 of 1996 or such
other or further order or orders passed as to this court may seem fit
and proper.
The short facts
relevant for the purpose of disposal of the Rule are that, the petitioner
company took loan from Bangladesh Shilpa Rin Sangstha (hereinafter called
"the BSRS") for establishment of its factory for which a loan
was granted and an amount of Taka 51.89 lakh were given till 3-12-86.
The petitioner company also took a loan from the Agrani Bank, Abdul
Hamid Branch, Pabna and on its failure to repay the loan the Agrani
Bank instituted Money Suit No. 14 of 1996 against the petitioner company
for recovering a sum of Taka 27,31,236.15. In that Money Suit the BSRS
was impleaded as proforma respondents No. 3. In that suit the Agrani
Bank filed an application for attachment of the project properties before
judgment which was allowed and against that order of attachment the
petitioner company filed Writ Petition No. 3285 of 1996 wherein the
impugned orders dated 18-4-1996 and 21-4-1996 passed by the learned
Subordinate Judge and Artha Rin Adalat was stayed till disposal of the
Rule and the Division Bench also directed the respondents to unlock
and hand over the possession of the Mill to the petitioner company immediately
and further proceedings of the aforesaid Money Suit was stayed till
disposal of the said writ petition.
It further appears
that the BSRS by a notice dated 12-10-92 asked the petitioner company
and its directors to pay company's loan liabilities amounting to Taka
1,70,26,000 as on 31-7-92 but the company and its directors did not
pay any money. Whereupon on 13-4-96 BSRS advertised in the daily Inqilab
a Public Notice for sale of the first mortgaged properties of the Company.
Against that public notice the petitioner company as plaintiff filed
Title Suit No. 2 of 1996 in the 2nd Commercial Court, Dhaka, challenging
the validity and propriety of the Public Notice for sale of the said
mortgaged properties. In that suit the BSRS filed an application under
Order VII rule 11 of the Code of Civil Procedure for rejection of the
plaint.
It appears that
BSRS also instituted Miscellaneous Case No. 588 of 1998 in the Court
of District Judge, Dhaka for recovery of Taka 432.33 lakh on 1-7-98
and the same was duly decreed against the present petitioner and its
directors. Against the aforesaid decree the present petitioner company
and its directors filed Miscellaneous Appeal No. 145 of 2000 before
the High Court Division but in that Miscellaneous Appeal a Division
Bench of this Court did not pass any order of status quo or any other
prohibitory order. It appears that on 28-1-2001 a Division Bench of
the High Court Division heard an application for maintaining the status
quo in respect of the machinery involved in the case till the disposal
of the appeal in Civil Rule No. 47 (FM) of 2001d and the BSRS was asked
to show cause why the order of status quo in respect of the concerned
machinery should not be granted.
During
the pendency of that proceedings the present petitioner company filed
contempt petition No. 99 of 1997 against the Subordinate Judge and the
Branch Manager, Agrani Bank, Pabna and accordingly, Rule was issued
upon them. But BSRS was not a party in the aforesaid Contempt Petition
No. 99 of 1997. Subsequently, the BSRS Board in its 226th meeting held
on 27-12-1998 decided to sell the machinery of the plant to the highest
tender at a price of 6 lakh and pursuant to the decision of the Board
BSRS issued Sale Certificate under rule 9 of the (Direct Sale of Mortgaged
Property) Rules 1981 as the rule requires the BSRS to issue a sale certificate
when the full sale price of the mortgaged property has been deposited
under rule 8. In this state of affairs on 30-11-2000 BSRS sought for
legal opinion from its adviser Mr AKM Nazrul Islam, Barrister-at-Law,
Senior Advocate of the Supreme Court to give his valued opinion as to
whether during the pendency of so many cases including contempt and
writ petition relating to the company, it is advisable to hand over
the machinery of the company to the buyer. The legal adviser i.e. the
present opposite party No. 3, gave his opinion to the effect that BSRS
should deliver the machinery to the buyer as soon as possible. He further
opined that Article 34 proceeding regarding the sale and transfer of
the project land and building, etc should be kept in abeyance for some
time and in the meantime, steps should be taken for hearing of the pending
matters in the High Court Division.
It is alleged by
the petitioner that by handing over the machinery to the highest bidder
the present opposite parties have committed contempt of this court by
violating the order dated 5-11-97 passed by the Division Bench in Writ
Petition No. 3285 of 1996.
Deliberation
In this case an important question as to the liability of an advocate
has been raised. Therefore, we would like to address that 'legal aspect'.
It has been settled for a century in England that a Barrister cannot
be sued by his client for breach of contract because the fees he receives
are an honorarium and there is no contractual relationship between a
barrister and a client. This position continued until Hedley Byrne was
decided by the House of Lords (1964) AC 465. In 1963 unanimously House
of Lords held that in principle there was no difference between physical
loss and financial loss and that a duty to take care in making statements
existed whenever there was a special relationship and there had not
been a disclaimer of responsibility. The said point was also emphasised.
In Rooks Vs Barnard
(1964) AC 1129, Hedley Byrne affirmed and extended the principle that
a duty to be careful as distinct from a duty to be honest may exist
in situations other than those in which there is a contract between
the parties. But there was doubt as to the Barrister's liability in
negligence as a result of Hedley Byrne. These doubts were nearly all
quieted when in Rondel Vs Worsley (1969) AC 191, the House of Lords
unanimously held that an Advocate could not be sued by his client in
respect of alleged negligence in the conduct of a criminal trial. It
should be remembered that Rondel Vs Worsley does not lay down the rule
that a Barrister cannot be sued for negligence by his client. The case,
in fact, lays down that as between Barrister and client there is a special
relationship giving rise to a duty of care unless the Barrister can
bring himself within the exceptional immunity of an Advocate. This immunity
is quite distinct from the rule that there is no contractual relationship
between the Barrister and client and is justifiable for a number of
reasons on grounds of public policy because there is a general public
interest in a free and independent Bar and a Barrister owes a duty to
the court for the true administration of justice, or because an action
for negligence against a Barrister would inevitably involve the re-trial
of the original proceeding or because the Barrister shares in general
immunity which as given to all those taking part in the judicial process.
But the law Lords
in Saif Ali Vs Mitchell and Co. (1980) AC 198, cut down the extent of
immunity holding that a Barrister was liable when he carelessly failed
to advise re-settling the plaintiffs claim so as to add another defendant.
So, there might well be liability for an opinion given in chambers on
point of law or for paperwork which was unconnected with litigation.
But it by no means follows that there is a liability in negligence if
an error takes place outside the area of immunity if a Barrister is
careful in doing his professional works. So, in order to avoid liability
outside the area of immunity a Barrister must be careful; he need not
be right.
This principle is
said to be founded on the principle that a person who undertakes to
do work which requires special skill holds himself out as having that
skill, the lack of it is blameworthy: imparitia culpa adnumeratur. It
must be remembered that the obligation to exercise that skill does not
depend on any contract or undertaking but based on the ground that of
a reasonable man. As a necessary corollary the standard of care required
is the degree of skill which is normally shown by a person doing that
kind of work. The test is the standard of ordinary skilled man exercising
and professing to have that special skill. A man need not posses the
highest expert skill. It is well established law that it is sufficient
if he exercises the ordinary skill of an ordinary competent man exercising
that particular art. See (1957) I WLR 582 at 586. Lord Haldane LJ said
in Nocton Vs Ashburton (Lord), the solicitor contracts with his client
to be skilful and careful. For failure to perform his obligation he
may be made liable at law in contract or even in tort, for negligence
in breach of a duty imposed on him" See (1914) AC 932 and (1953)
Ch. 280. It must be borne in mind that what applies to a solicitor,
applies to a lawyer in Bangladesh.
Besides, our statutory
law also makes it clear that a lawyer may be reprimanded, suspended
or removed from practice if he is found guilty of professional or other
misconduct. In Bangladesh an advocate can also be proceeded against
for breach of contract if he is negligent in discharging his professional
responsibilities. Therefore, the lawyers of this country are under the
obligation to act reasonably and carefully in discharging their professional
duties except so far it relates to actual advocacy in a court of law
otherwise he will be liable to his client either in negligence for breach
of contract or in tort.
Decision
In the present case we have found that the legal opinion tendered by
Mr Nazrul Islam is in accordance with law and, in fact, there has been
no contempt of this court for violation of the order dated 5-11-96.
In spite of that the petitioner has initiated this proceedings impleading
the high officials of the BSRS including their adviser and it appears
to us that Mr Nazrul Islam has rightly submitted that this attempt on
the part of the petitioner company is nothing but an attempt to unduly
delay the payment of the BSRS dues and to delay the disposal of the
pending legal proceedings in different courts. It is a unique case wherein
a Senior Advocate of this court has been unnecessarily harassed by initiating
this contempt proceeding and such unholy attempt must be nipped in the
bud. Therefore, the petitioner should be saddled with a cautionary cost
of Taka 25,000 to be paid to respondent No. 3.
In view of our aforesaid
discussions we do not find any substance in this Rule and accordingly,
the Rule is discharged with a cost at Taka 25,000 to be paid by the
petitioner to the respondent No. 3 within 3 (three) months from date.
Advocate
Ozair Farooque, for the petitioner. Advocate AKM Nazrul Islam with Abdullah-Al-Mamun,
for the respondents.
