Lawsikho Blog

Learn about the concept of statutory appeals under section 38 of the Advocates Act and how to draft them before the Supreme Court of India. If you are someone who wants to practice in the Supreme Court or if you are preparing for the Supreme Court Advocate on Record exam, then this article is a must read for you.

Introduction

A few months back, I had a matter in the Supreme Court, and I was waiting for my turn to come.

Meantime, I saw a very interesting matter which dealt with a senior advocate filing an appeal before the Supreme Court challenging the decision of the Disciplinary Committee of the Bar Council to suspend his license.

The matter involved many senior counsels arguing the matter. 

It involved the issue of the Bar Council overstepping its jurisdiction and deciding the matter without sufficient evidence.

The matter was ultimately decided in favour of the senior advocate, and the Bar Council was reprimanded by the Supreme Court for overstepping its jurisdiction.

After my matter got over, I came back to my chamber, and I wanted to know more about this.

So, I searched online, but to my surprise, I could not find much online, so I turned back to my senior, and he explained everything about appeals filed under section 38 of the Advocates Act, 1961.

I found this to be very useful, and since it is a very important remedy for lawyers and there is not much information available online, I have decided to share whatever my senior told me.

The first thing you must understand is in what circumstances complaints are filed against advocates.

In what cases are complaints filed against advocates?

The Bar Council of India has framed Rules, particularly Chapter II of Part VI thereof, which provide the Standards of Professional Conduct and Etiquette. 

This chapter consists of the following sections:- 

• Section I – Duty to the Court. 
• Section II – Duty to the Client. 
• Section III – Duty to the Opponent. 
• Section IV – Duty to Colleagues. 
• Section IVA – BCI Advocates Welfare Fund. 
• Section V – Duty in imparting legal training. 
• Section VI – Duty to render legal aid. 
• Section VII – Restrictions on employment.

As far as Advocates on Record of the Supreme Court are concerned, Advocates on Record (AOR) have special responsibilities stipulated under Order IV of the Supreme Court Rules, 2013. 

While many of the provisions of Order IV of the Supreme Court Rules are similar to the duties incorporated in the aforesaid Rules, there are also various additional responsibilities cast on AORs under the Supreme Court Rules.

Any conduct which is contrary to the rules laid down by the Bar Council of India or the Supreme Court Rules, as the case may be, constitutes misconduct and is liable to be punished.

Although the term “misconduct” has not been defined under the Advocates Act, it means improper behaviour, intentional wrongdoing or deliberate violation of a rule of standard or behaviour.

The common cases of misconduct are as follows:

• Violating the confidence of the client
• Violating the duty towards the court
• Acting without the authority of the client
• Professional Negligence
• Fee related misconduct
• Misappropriation of money
• Physical assault by an advocate
• Strikes
• Advertising or solicitation

I will now explain the legal framework that governs the filing of complaints and appeals in cases of any professional misconduct.

What happens if the Rules are violated or advocates do not follow the expected standards of conduct?

Section 35 of the Advocates Act,1961 refers to the imposition of punishment for professional or other misconduct. 

1. If the State Bar Council receives a complaint or otherwise believes an advocate on its roll is guilty of misconduct, the case is referred to the disciplinary committee of the State Bar Council.
2. After hearing the advocate and the Advocate-General, the committee may:

1. Dismiss the complaint or file proceedings initiated by the State Bar Council.
2. Reprimand the advocate.
3. Suspend the advocate from practice for a period deemed fit.
4. Remove the advocate’s name from the State roll of advocates.

3. During suspension, the advocate is debarred from practising in any court or before any authority or person in India.

Section 36: Disciplinary powers of the Bar Council of India

1. On receipt of a complaint or otherwise, if the  Bar Council of India believes an advocate whose name is not entered on any State roll is guilty of misconduct, the case shall be referred to the disciplinary committee of the Bar Council of India.
2.  The disciplinary committee of the Bar Council of India can make any order similar to that of the disciplinary committee of the State Bar Council.
3. The State Bar Council must implement orders made by the disciplinary committee of the Bar Council of India.

Section 37: Appeal to the Bar Council of India

1. Any aggrieved person by an order of the disciplinary committee of the State Bar Council can appeal to the Bar Council of India
2. An appeal must be made within 60 days of the communication of the order.
3.  The disciplinary committee of the Bar Council of India shall hear the appeal, which can pass any order, including varying the punishment.
4. But it cannot vary the order to prejudicially affect the aggrieved person without a hearing.

Section 38: Appeal to the Supreme Court

1. Any aggrieved person by an order of the disciplinary committee of the Bar Council of India can appeal to the Supreme Court.
2. An appeal must be made within 60 days of the communication of the order.
3. The Supreme Court can pass any order, including varying the punishment, but cannot vary the order to prejudicially affect the aggrieved person without a hearing.

Order XXIII of the Supreme Court Rules, 2013, governs appeals filed under section 38 of the Advocates Act,1961.

Are you following?

 I hope that you have a fair understanding of the steps that need to be taken in case of professional misconduct, and also what options are available with the advocate to challenge the orders passed against him or her.

Let us now understand about the mandatory averments ro be included in the appeal

What are mandatory averments in the appeal filed under section 38 of the Advocates Act,1961?

According to Order XXIII Rule 2 of the Supreme Court Rules, 2013, the memorandum of appeal shall be in the form of a petition. 

It shall state succinctly and clearly all the relevant facts leading up to the order complained of, and shall set forth in brief the objections to the decision appealed from and the grounds relied on in support of the appeal. 

The petition shall also state the date on which the order complained of was received by the appellant. 

We will now look at the grounds for filing the appeal.

What are the grounds for filing an appeal under section 38 of the Advocates Act,1961?

The common grounds to file an appeal are as follows:

1. If there is an error apparent on the face of the record, such as ignoring material evidence or relying on evidence which is not on record.
2. If the order is passed in violation of the principles of natural justice, for instance, without giving a proper hearing, it is a strong ground to file an appeal.
3.  If the Bar Council of India has applied the wrong standard or has misinterpreted the provisions of the act and the rules.
4. If the Bar Council of India has failed to follow the precedents laid down on the issue, especially by the Supreme Court, it is another strong ground to challenge the order.
5. If the Bar Council of India has overstepped its jurisdiction in deciding the matter.

We now move to the main part of this article, which is the drafting process.

How to draft an appeal under section 38 of the Advocates Act,1961?

We will consider the following facts to draft this appeal.

Brief facts

Ravi Verma is an advocate with 50 years of experience. He was engaged by Mr. Naresh Lamba and Mr. Sainath, who are trustees of Ved Gyaan Vidyapeeth, in December 2016 to handle litigations over an auctioned property. Ravi Verma secured favourable orders in the City Civil Court, Karnataka High Court, and Revenue Authorities for approximately 6 years and dedicated over 600 hours. Despite agreeing to pay a fee of ₹50,00,000, he received only ₹15,00,000, therefore, Ravi Verma filed a suit bearing O.S. No. 593/2018 for the balance fees of ₹35,00,000 against them. The matter came to be settled for a total payment of ₹40,00,000 on 17.04.2023. The Respondents filed a complaint (BCI Tr. Case No. 28/2023) alleging professional misconduct for filing  “false cases” which resulted in a two-year suspension that was imposed on Ravi Varma by the Bar Council of India on 12.12.2023, ignoring the compromise, lacking a preliminary inquiry, and applying an incorrect standard of proof.

I have given the explanation in red to help you understand the purpose of each part of the appeal.

  SYNOPSIS

Explanation: A synopsis is a brief summary of the matter and must include the order being challenged, the nature of the dispute, the main grounds of the challenge, and the relief sought. It should highlight the important points that form the foundation of the case, ensuring the court understands the core issues at the outset. 

The present statutory appeal has been filed by the Appellant under Section 38 of the Advocates Act, 1961, challenging the Impugned Order Impugned Order dated 12.12.2023 passed by the Disciplinary Committee of the Bar Council of India, wherein the Disciplinary Committee had erroneously held the Appellant guilty of professional misconduct and suspended his licence for a period of 2 years, in a summary manner without appreciating the evidence on record.

The Appellant, who is a reputed Advocate having over 50 years of experience in handling several high profile cases, was engaged by Mr. Naresh Lamba and Mr. Sainath, who were the trustees of the Trust run by the Ved Gyaan Vidyapeeth Foundation headed by the Spiritual Guru Shri Sri Ram Shankar, for representing them before the City Civil Court, Bengaluru. After that, the Appellant was also engaged by the Respondents before multiple fora, including the Karnataka High Court, Revenue Authorities, and the Police Authorities, and in all such forums, the Appellant had not only successfully represented the Respondents for a period of approximately 6 years and 600 hours of work, but had also obtained favourable orders in all such proceedings, and had filed voluminous pleadings in most of these hearings. It was mutually agreed and promised by Shri Sri Ram Shankar that a cumulative fee of ₹50,00,000 would be paid to the Appellant as his professional fee.

On 18th October 2018, the Appellant served a Notice along with a Memo mentioning all the work that he had done and raised an Invoice of ₹50,00,000 as full and final settlement; however, he only received ₹15,00,000 with the reply from the Respondents stating the same as full and final settlement of the fee. The Appellant thereby instituted a suit for recovery of the balance amount, and cross suits were also instituted between the parties, which ended in a compromise, and a sum of ₹40,00,000 was paid. The suit was dismissed, and all complaints were withdrawn.

However, the Respondents initiated disciplinary proceedings against the Appellant before the Karnataka State Bar Council, and the matter was transferred to the Bar Council of India, which, without conducting a preliminary inquiry, directly referred the matter to its Disciplinary Committee. The Disciplinary Committee, without taking evidence into record and arguments by the parties, vide Impugned Order dated 12th December 2023, suspended the Appellant for 2 years. Hence, the present appeal has been filed to set aside the Impugned Order.

LIST OF DATES

Explanation: The list of dates and events is a chronological sequence of significant events relevant to the case. It must be detailed to enable the court to understand the entire matter at the threshold.

Date	Event
10.12.2016	Ravi Verma was contacted by Mr. Naresh Lamba (Respondent No. 2) and Mr. Sainath (Respondent No. 3), trustees of Ved Gyaan Vidyapeeth, a trust established by Sri Sri Ram Shankar, to provide legal representation in a Court Auction case before the Hon’ble City Civil Court, Bengaluru, concerning a property acquired by the Trust.
01.01.2017	The Appellant was formally engaged by Respondent No. 2 and Respondent No. 3 to prosecute an application for the issuance of a Sale Certificate for the auctioned property, with an oral agreement from Sri Sri Ram Shankar for a consolidated professional fee of ₹50,00,000 for all related legal services.
15.06.2017	The Hon’ble City Civil Court issued the Sale Certificate in favour of the Trust. The Appellant was subsequently retained by Respondent No. 2 and Respondent No. 3 to file and argue three additional applications to address procedural issues related to the auction sale.
30.09.2017	All three applications were adjudicated in favour of the Trust, which concluded the initial phase of litigation before the Hon’ble City Civil Court.
15.12.2017	Mr. GM Krishna, the original landowner, filed a notice of intent to challenge the auction sale.
01.01.2018	Mr. GM Krishna initiated multiple proceedings in the Hon’ble Karnataka High Court to set aside the auction sale on the grounds of alleged irregularities. The Appellant was engaged by Respondent No. 2 and Respondent No. 3 to defend the interests of the Trust in these matters.
15.03.2018	The Hon’ble Karnataka High Court dismissed the petitions filed by Mr. GM Krishna, upholding the auction sale in favour of the Trust, with the Appellant securing favourable orders.
01.06.2018	Mr. GM Krishna commenced proceedings before the Revenue Authorities, requesting a survey of the auctioned property to contest its boundaries and ownership. The Appellant was retained by Respondent No. 2 and Respondent No. 3 to represent the Trust.
30.09.2018	The Revenue Authorities issued an order in favour of the Trust, rejecting the claims of Mr. GM Krishna, based on the detailed pleadings and arguments of the Appellant.
01.10.2018	Mr. GM Krishna filed a Writ Petition (WP No. 1234/2018) in the Hon’ble Karnataka High Court, challenging the order of the Revenue Authorities. The Appellant was engaged by Respondent No. 2 and Respondent No. 3 to defend the Trust, which appeared on over 25 hearing dates over the next five years.
15.10.2018	The Appellant filed representations to the Revenue and Police Authorities to counter the parallel attempts of Mr. GM Krishna to re-agitate the survey issue, ensuring the interest of the Trust is protected.
18.10.2018	Respondent No. 2 and Respondent No. 3 paid an amount of ₹15,00,000 to the Appellant, asserting it as full and final settlement of his professional fees. The Appellant issued a bill for ₹50,00,000, mentioning 600 hours of work across multiple proceedings.
25.10.2018	Respondent No. 2 and Respondent No. 3, via email, reiterated that the amount of ₹15,00,000 constitutes full settlement and request a No Objection Certificate (NOC) Vakalatnama to appoint a new counsel.
30.10.2018	The Appellant clarified that the amount of ₹15,00,000 is a partial payment and reserved his right to pursue legal action for the balance fees. He agreed to issue the NOC Vakalatnama with an endorsement, “Without Prejudice To Recover My Professional Fees.”
15.11.2018	The Appellant filed a suit bearing O.S. No. 593/2018 before the Learned Additional City Civil Judge, Bengaluru, against Sri Sri Ram Shankar, the Trust, and Respondent No. 3, seeking recovery of ₹35,00,000 towards unpaid professional fees.
01.12.2018	Respondent No. 2 and Respondent No. 3 filed a counterclaim in O.S. No. 593/2018, alleging that the demand of the Appellant for additional fees is unfounded and constitutes harassment.
05.01.2019	The Appellant informed Respondent No. 2 and Respondent No. 3 via letter that he can no longer represent the Trust due to the fee dispute and provided detailed updates on ongoing cases, and requested them to collect NOC Vakalatnamas and case documents.
10.01.2019	During the collection of case documents, Respondent No. 3 allegedly threatened the Appellant, prompting the Appellant to lodge a complaint with the Commissioner of Police, Bengaluru, for intimidation.
25.04.2019	Respondent No. 2 and Respondent No. 3 filed a complaint (D.C.E. No. 37/2019) with the Karnataka State Bar Council (Respondent No.4), alleging professional misconduct by the Appellant for filing “false cases” to extort exorbitant fees.
30.06.2019	The Karnataka State Bar Council (Respondent No.4) transferred the complaint to the Bar Council of India (Respondent No. 1) under Section 36B of the Advocates Act, 1961, without conducting a preliminary inquiry. The complaint is re-numbered as BCI Tr. Case No. 28/2023.
15.08.2019	The Bar Council of India (Respondent No. 1) notified the Appellant of the disciplinary proceedings and scheduled a preliminary hearing for BCI Tr. Case No. 28/2023.
01.04.2023	The Appellant, Respondent No. 2, and Respondent No. 3 opted for mediation in O.S. No. 593/2018 and related counter-claims, facilitated by the Bengaluru Mediation Centre, to resolve the fee dispute.
17.04.2023	O.S. No. 593/2018 and all related complaints were settled out of court, with Respondent No. 2 and Respondent No. 3 agreeing to pay ₹40,00,000 to the Appellant. The suit was dismissed, and all complaints were withdrawn.
15.07.2023	The Bar Council of India (Respondent No. 1) scheduled a hearing for BCI Tr. Case No. 28/2023, directing the Appellant, Respondent No. 2, and Respondent No. 3 to submit evidence and written statements.
05.11.2023	BCI Tr. Case No. 28/2023 was called before the Disciplinary Committee of the Bar Council of India (Respondent No. 1), but all parties were absent. The Committee closed the opportunity for evidence submission and fixed the matter for arguments on 26.11.2023.
26.11.2023	The Appellant, Respondent No. 2, and Respondent No. 3 submitted written arguments to the Disciplinary Committee, with copies served to each other, addressing the allegations of professional misconduct.
12.12.2023	The Disciplinary Committee of the Bar Council of India (Respondent No. 1) passed an order in BCI Tr. Case No. 28/2023, suspending the Appellant for 2 years, alleging professional misconduct for filing false cases to demand exorbitant fees.
15.12.2023	The Impugned Order dated 12.12.2023 was formally communicated to the Appellant by the Bar Council of India (Respondent No. 1).
20.12.2023	The Appellant obtained an authenticated copy of the Impugned Order from the Bar Council of India (Respondent No. 1) for the purpose of filing the present appeal.
__.01.2024	The present appeal is filed before the Hon’ble Supreme Court of India under Section 38 of the Advocates Act, 1961, challenging the Impugned Order dated 12.12.2023 passed by the Disciplinary Committee of the Bar Council of India (Respondent No. 1).

Explanation: This section of the appeal must mention the court that is going to hear the case and the nature of the jurisdiction of the Court under which it will entertain the appeal, along with the case number, names, and description of the parties.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. ___ OF 2024

[Appeal under Section 38 of the Advocates Act, 1961 against the Impugned Order dated 12.12.2023 in BCI Tr. Case No. 28/2023 passed by the Disciplinary Committee of the Bar Council of India, New Delhi]

IN THE MATTER OF:

Name and Address	Position in Appeal
RAVI VERMA, S/O KUMAR VERMA, ADVOCATE, AGED ABOUT 75 YEARS, R/O 123, MG ROAD, BENGALURU, KARNATAKA	Appellant
VERSUS
1. BAR COUNCIL OF INDIA, THROUGH ITS SECRETARY, 21, ROUSE AVENUE, NEW DELHI	Respondent No. 1
2. NARESH LAMBA, TRUSTEE, VED GYAAN VIDYAPEETH, R/O 45, JAYANAGAR, BENGALURU, KARNATAKA	Respondent No. 2
3. SAINATH, TRUSTEE, VED GYAAN VIDYAPEETH, R/O 45, JAYANAGAR, BENGALURU, KARNATAKA	Respondent No. 3
4. KARNATAKA STATE BAR COUNCIL, THROUGH ITS SECRETARY, OLD KGID BUILDING, BENGALURU, KARNATAKA	Respondent No.4

APPEAL UNDER SECTION 38 OF THE ADVOCATES ACT, 1961 AGAINST THE IMPUGNED ORDER DATED 12.12.2023 IN BCI TR. CASE NO. 28/2023 PASSED BY THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA, NEW DELHI

TO
THE HON’BLE CHIEF JUSTICE OF INDIA AND 

HIS COMPANION JUSTICES OF THIS HON’BLE COURT

MOST RESPECTFULLY SHOWETH:

You start the appeal by explaining why you are filing it. This is your introduction paragraph stating the order that is being challenged in the appeal.

1. The present statutory appeal has been filed by the Appellant under Section 38 of the Advocates Act, 1961, challenging the Impugned Order dated 12.12.2023 passed by the Disciplinary Committee of the Bar Council of India, wherein the Disciplinary Committee had erroneously held the Appellant guilty of professional misconduct and suspended his licence for a period of 2 years, in a summary manner without appreciating the evidence on record. A true copy of the Order dated 12.12.2023 passed by the Disciplinary Committee of the Bar Council of India is annexed herewith as “Annexure P 1”.

You start by mentioning the brief facts of the matter leading to the Civil Appeal and attaching all relevant documents to the Appeal.

2. FACTS

2.1. In December 2016, the Appellant, Ravi Verma, was engaged by Mr. Naresh Lamba (Respondent No. 2) and Mr. Sainath (Respondent No. 3), trustees of Ved Gyaan Vidyapeeth, a trust founded by Sri Sri Ram Shankar, to represent the Trust in a Court Auction case before the Hon’ble City Civil Court, Bengaluru, wherein the Appellant successfully secured a Sale Certificate on 15.06.2017 in favour of Respondent Nos. 2 and 3.

2.2. The Appellant was further engaged to file and argue three applications related to the auction sale, all of which were disposed in favour of the Respondents by 30.09.2017.

2.3. In January 2018, the Appellant represented the Trust in litigations initiated by Mr. GM Krishna, the original landowner, before the Hon’ble Karnataka High Court, seeking to set aside the auction sale. The matters were disposed of in favour of the Trust.

2.4. The Appellant was also engaged by Respondent No. 2 and Respondent No. 3 in proceedings initiated by Mr. GM Krishna before the Revenue Authorities for a survey of the auctioned property. The Appellant filed extensive pleadings and secured a favourable order for the Trust.

2.5. Between 01.10.2018 and 15.03.2023, the Appellant represented the Trust in a Writ Petition (WP No. 1234/2018) filed by Mr. GM Krishna challenging the Revenue Authorities’ order. The Appellant appeared on over 25 hearing dates across five years, securing a favourable outcome for the Trust.

2.6. Concurrently, the Appellant filed voluminous representations and appeared before the Revenue and Police Authorities to counter the parallel attempts of Mr. GM Krishna to re-agitate the survey issue, thereby protecting the interests of the Trust.

2.7. On 18.10.2018, Respondent No. 2 and Respondent No. 3 paid an amount of Rs.15,00,000/-, claiming it as full and final settlement. The Appellant raised a invoice for an amount of Rs.50,00,000/-, mentioning the services rendered by the Appellant and requested payment of the balance fees. A copy of the invoice is hereto annexed as Annexure P 2.

2.8. On 25.10.2018, Respondent No. 2 and Respondent No. 3 asserted that the amount of Rs.15,00,000/- was paid in full settlement of the fees and requested an NOC Vakalatnama. On 30.10.2018, the Appellant clarified that the payment was partial and reserved his right to recover the balance, and agreed to issue the NOC with an endorsement, “Without Prejudice To Recover My Professional Fees.” A copy of the NOC is hereto annexed as Annexure P 3.

2.9. On 15.11.2018, the Appellant filed a suit bearing no.O.S. No. 593/2018 before the Learned Additional City Civil Judge, Bengaluru, against Sri Sri Ram Shankar, the Trust, and Respondent No. 3, claiming Rs.35,00,000/- towards the unpaid fees. A copy of the plaint (without exhibits) is hereto annexed as Annexure P 4.

2.10. On 05.01.2019, the Appellant stopped representing Respondent Nos 2 and 3, after providing updates on ongoing cases, and requested Respondent Nos 2 and 3 to collect NOC Vakalatnamas and case documents. On 10.01.2019, Respondent No. 3 allegedly threatened the Appellant while collecting the documents, causing the Appellant to file a complaint with the Commissioner of Police, Bengaluru. A copy of the police complaint is annexed as Annexure P 5.

2.11. On 25.04.2019, Respondent No. 2 and Respondent No. 3 filed a complaint (D.C.E. No. 37/2019) with the Karnataka State Bar Council on the grounds of professional misconduct. The complaint was transferred to the Bar Council of India (Respondent No. 1) under Section 36B of the Advocates Act, 1961, without a preliminary inquiry and was re-numbered as BCI Tr. Case No. 28/2023.

2.12. On 17.04.2023, O.S. No. 593/2018 and all related matters were settled out of court by the Appellant with Respondent No. 2 and Respondent No. 3 after payment Rs.40,00,000/- to the Appellant towards the fees. The suit and all complaints were accordingly withdrawn. A copy of the consent decree is hereto annexed as Annexure P 6.

2.13. On 05.11.2023, BCI Tr. Case No. 28/2023 was called before the Disciplinary Committee of the Bar Council of India (Respondent No. 1), but all parties were absent, resulting in the closure of evidence opportunities. The matter was fixed for arguments on 26.11.2023, and both sides filed written arguments. On 12.12.2023, the Disciplinary Committee of the Bar Council of India (Respondent No. 1) passed an order suspending the Appellant for 2 years, holding him guilty of professional misconduct for allegedly filing false cases to demand exorbitant fees, without considering the compromise or evidence on record.

You start by mentioning the grounds in support of the appeal. Remember that grounds always begin with “Because”. 

3. GROUNDS 

You first mention that the observation of the Disciplinary Committee is bad in law since the fees were charged on mutual agreement and any observation to consider it high is erroneous.

3.1. Because, in the present case, the Disciplinary Committee of the Bar Council of India has erred in its observation that the fee charged was high and thus amounted to an act of professional misconduct. The fee was charged on mutually agreeable terms between the Appellant and the Respondent Nos. 2 and 3, covering multiple proceedings spanning over a period of five to six years and totalling six hundred hours of work, as evidenced by the bill raised by the Appellant to the Respondents.

Since there is a case law on this issue, I have even cited that to show the reasoning to pass the order is already settled, and this order is contrary thereto. You can also show that even in the facts of the present case, the advocate is an experienced and competent lawyer who has charged the fees as per his calibre 

3.2. Because charging a high fee does not constitute professional misconduct, as established in A A Pleader v. The Judges of the High Court of Madras, which held that the quantum of fee cannot amount to professional misconduct. The Appellant, with approximately fifty years of experience and having handled numerous high-profile cases, charged a fee commensurate with that collected by advocates of similar standing at the Bar and the complexity of the case. 

You establish the law on this subject, and since it is in favour of the appellant, the same can be mentioned herein. You must also show the basis for the action of the Appellant.

3.3. Because it is settled law that an advocate has the right to sue his client for unpaid fees, like any other professional. The Disciplinary Committee failed to consider that all cases and counter-cases filed between the parties were settled out of court and withdrawn upon payment of Rs. 40,00,000/- to the Appellant by the Trust prior to the passing of the Impugned Order dated 12.12.2023. If the cases were false and the fee was not agreed upon, Respondent Nos. 2 and 3 would not have paid Rs. 40,00,000/- towards settlement in a compromise proceeding. 

3.4. Because the Bar Council of India erroneously decided the case by applying an incorrect standard of proof in disciplinary proceedings under the Advocates Act, 1961. It is a settled principle that the standard of proof required is higher than preponderance of probabilities but less than that in criminal proceedings. However, the present case was decided summarily based on the preponderance of probabilities, without considering relevant evidence.

The basic purpose of the appeal is to point out the errors in the Impugned Order, which favours the Appellant.

3.5. Because, the handling of the case by the Bar Council of India violated the principles of law laid down by this Hon’ble Court in Nandlal Khodidas Barot v. Bar Council of Gujarat, which mandates that the State Bar Council must assess whether a prima facie case exists before referring a complaint to the Disciplinary Committee. In the instant case, the Respondent No.4 referred the matter to the Disciplinary Committee without conducting such a preliminary inquiry.

In every case, the most common challenge is based on jurisdiction. Since in the present case the matter was contractual, private and personal to the parties involved, the Impugned order is passed without jurisdiction.

3.6. Because the Impugned Order of the Bar Council of India is without jurisdiction and improperly interferes with the private contractual relationship between an advocate and a client. The agreement on fees was accepted upon signing of the Vakalatnama, and the Respondents could not arbitrarily go back from their promise by tendering a cheque of Rs. 15,00,000/- against the agreed Rs. 50,00,000/-.

3.7. Because the Bar Council of India exceeded its jurisdiction and violated principles of natural justice by failing to consider the consent decree in O.S. No. 593/2018, which recorded the out-of-court settlement. The Bar Council, having not opposed the suit during its pendency, could not legitimately agitate the matter through disciplinary proceedings, rendering the Impugned Order manifestly arbitrary and necessitating interference by this Honourable Court.

It is mandatory to mention the date when the order was communicated to the Appellant, which is necessary to compute the limitation period.

4. The Appellant states that the Impugned Order dated 12.12.2023 was formally communicated to the Appellant by the Bar Council of India (Respondent No. 1) on 15.12.2023 and the Appellant obtained an authenticated copy of the Impugned Order from the Bar Council of India (Respondent No. 1) for the purpose of filing the present appeal on 20.12.2023. Therefore, the present appeal has been filed within limitation.

Finally, you mention the prayer clause requesting the appeal to be admitted and allowed, followed by the setting aside of the order. In this case, you also ask for reinstatement of the license. Here is how the prayer clause shall look in the present case

5. MAIN PRAYER:

The appellant therefore prays that this Hon’ble Court may be pleased to;

1. Admit and allow the Civil Appeal and set aside the impugned order dated 12th December 2023 passed by the Disciplinary Committee of the Bar Council of India in BCI Tr. Case No. 28/2023.
2.  Direct reinstatement of the licence granted by the Karnataka Bar Council (Respondent No.4) forthwith
3. Any other order which the Court deems fit in the facts and circumstances of the present case. 

AND FOR THIS ACT OF KINDNESS THE APPELANT SHALL AS IN DUTY BOUND EVER PRAY

Filed on:__ 01.2024

Now that you are aware of how to draft this appeal, you must also know the limitation period for filing this appeal.

What is the time limit for filing an appeal under section 38 of the Advocates Act,1961?

As per section 38 as well as Order XXIII Rule 1 of the Supreme Court Rules, 2013, the appeal has to be filed within a period of sixty days from the date on which the order complained of is communicated to the aggrieved person.

It is also important to know the documents to be annexed to the appeal.

What are the documents to be annexed to the appeal?

As per Order XXIII Rule 5 of the Supreme Court Rules, 2013, the appeal shall be accompanied by

• an authenticated copy of the decision sought to be appealed from, and
• at least seven spare sets of the appeal and the papers filed with it.

Lastly, we will learn about the procedure after filing and registration of the appeal.

What is the procedure after filing and registration of an appeal under section 38 of the Advocates Act,1961?

Rules 6 to 13 of Order XXIII deal with the process after filing and registering the appeal in the Supreme Court.

Rule 6: After registration of the appeal, the copy is sent to the Secretary of the Bar Council of India for record.

Rule 7: Upon registering an appeal, the Registrar will notify the appellant or their advocate and post the appeal for a preliminary hearing. The Court may dismiss the appeal if no prima facie case is found or issue notices to the Advocate-General, Attorney-General, or both and to the Respondent if the Appellant, if the Court is satisfied.

Rule 8: Within 10 days of receipt of intimation of the admission of appeal, the Secretary of the Bar Council of India shall send the original case record and available paper book copies to the Court.

Rule 9:Within 15 days of receiving the notice of admission of appeal, the Advocate-General, Attorney-General, or respondent may appear personally or through an advocate-on-record.

Rule 10: If a respondent fails to appear within the time limit (Rule 9), the appeal may proceed for an ex parte hearing after one month from the receipt of notice..

Rule 11: After receiving the original record, the Registrar, in consultation with the parties, shall select relevant documents for the appeal, and the appellant shall bear the cost of the copies, typing and printing 

Rule 12: Unless otherwise ordered, the appeal must be prepared and, if possible, listed for hearing within four months of registration.

Rule 13: If the appellant fails to take the required steps or commits a delay in bringing the matter to a hearing, the Registrar may demand an explanation. If no or an insufficient explanation is provided, the matter shall be placed before the Court for orders on the default. The Court may dismiss the appeal for want of prosecution, or give such directions as it may think fit and proper.

Conclusion

You can effectively present your case by adhering to the procedural requirements outlined in Order XXIII of the Supreme Court Rules, 2013, such as filing within 60 days, paying the requisite court fee, and including mandatory documents. It is necessary to ensure that you comply with procedural steps and draft the memorandum of appeal with relevant facts and grounds, as discussed earlier, to protect the interest of the advocate and safeguard their right to practice in the profession.

Frequently asked questions (FAQs)

1. Who can file an appeal under section 38 of the Advocates Act,1961?

According to Order XXIII Rule 1 of the Supreme Court Rules, 2013, an appeal can be filed by the following persons:

• The aggrieved person (usually the advocate or complainant)
• The Attorney General for India, or
• The Advocate General of the concerned State.

You must also note that only an Advocate on record of the Supreme Court can file cases in the Supreme Court.

2. What is the court fee for such an appeal?

As per Order XXIII Rule 4 of the Supreme Court Rules, 2013, the court fee of Rs.5000/- has to be paid on the appeal.

3. Can the Supreme Court dismiss the appeal at the preliminary stage?

Yes. If the Court finds no prima facie case, it may dismiss the appeal at the preliminary hearing stage itself.

4. Can the Supreme Court impose or award costs in such an appeal?

Yes, the Supreme Court has discretionary power to impose or award in the appeal.

5. Is the time period for obtaining the certified copy of the order excluded in computing the period of limitation?

Yes, in computing the limitation period of sixty days, the time period for obtaining an authenticated copy of the order sought to be appealed from shall be excluded.