WP No. 69 of 2015 - Deepak Khosla Vs. Khaitan & Co - Debar From Practice

T. No. _____________ of 2015

W.P. No. 69 of 2015

IN THE HONBLE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION

ORIGINAL SIDE

IN THE MATTER OF : An application under Article 226 & 227 of the Constitution of India;

AND IN THE MATTER OF : The Calcutta High Court (Original Side) Rules, 1914

AND IN THE MATTER OF :

Section 34 of the Advocates Act, 1961

IN THE MATTER OF :

MR. DEEPAK KHOSLA & ORS.

.PETITIONERS

Versus

HONBLE HIGH COURT OF CALCUTTA & ORS. .RESPONDENTS

Group : IX Heads : -

of the Classification List. Sd/-

. DATE : 22-01-2015 Deepak Khosla (Advocate) PLACE:KOLKATA PETITIONER No. 1 IN PERSON

D - 367 Defence Colony NEW DELHI 110 024 Tel : 099 530 96650

[email protected]

Also at : Suite No. 408, 4th Floor

Center Point 21 Old Court House Street

(also known as Hemant Basu Sarani) KOLKATA -700 001

T. No. _____________ of 2015

W.P. No. 69 of 2015

IN THE HONBLE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION

ORIGINAL SIDE

IN THE MATTER OF :

MR. DEEPAK KHOSLA & ORS.

.PETITIONERS

Versus

HONBLE HIGH COURT OF CALCUTTA & ORS. .RESPONDENTS

INDEX

Sl.

No.

Particulars

Page No.

1. Group Index. -

2. Index -

3. List of dates. 1 3

4. Points Involved. 4 6

5. Proforma. 7

6. Writ Petition under Articles 226 and 227 of the

Constitution of India, alongwith affidavit.

8 80

7. Annexure 1: Chapter I of the Calcutta High Court

(Original Side) Rules, 1914.

81 86

8. Annexure 2 : Letter dated 09-01-2015 filed by Mr.

Deepak Khosla, with Ld. Registrar (Original Side),

seeking insertion of his name in the Register of

Advocates.

87 89


Deepak Khosla with Ld. Registrar (Original Side),

placing on record the infractions of law by Khaitan &

Co, seeking action in accordance with law.

90 131

10. Annexure 4 : Letter dated 16-01-2015 from Ld.

Registrar (Original Side) to Mr. Deepak Khosla,

confirming the lack of eligibility of M/s Khaitan &

Company to act on the Original Side of this Hon'ble

Court.

132

11. Annexure 5 : Letter dated 19-01-2015 addressed by

Mr. Deepak Khosla to Honble the Chief Justice,

reporting the inaction of Ld. Registrar (Original

Side) against Khaitan & Co.

133

12. Annexure 6 : Application dated 13-01-2015 seeking

intiation of criminal contempt proceedings against

Khaitan & Co for misleading the court (awaiting

filing).

134 192

13. Annexure 7 : Application dated 13-01-2015 seeking

prohibition against certain persons appearing in CP

No. 33 of 1988 (awaiting filing).

193 269


Deepak Khosla with Ld. Registrar (Original Side),

placing on record the manipulations being resorted

to by Khaitan & Co, seeking action in accordance

with law.

270 297

15. Annexure 9 : News article in Legally India on

Khaitan.

298

16. Annexure 10 : Rules of the Karnataka High Court,

framed under Section 34 of the Advocates Act.

299 302

17. Annexure 11 : Website page of Khaitan & Company. 303

18. Annexure 12 : Letterhead of Khaitan & Co. as of

2008.

304

19. Annexure 13 : List of Senior Advocates designated

by the Hon'ble High Court of Calcutta w.e.f. 30-06-

2014 vide Notification dated 09-06-2014.

305

20. Annxure 14 : Typical filing by Khaitan & Co., having

no signature of the person signing the same.

306

Sd/- .

DATE : 22-01-2015 Deepak Khosla (Advocate) PLACE:KOLKATA PETITIONER No. 1 IN PERSON


[email protected]




1

IN THE HONBLE HIGH COURT OF CALCUTTA AT KOLKATA

ORIGINAL WRIT JURISDICTION

CIVIL WRIT PETITION No._____________OF 2015

[Under Article 226 & 227 of the Constitution of India]

IN THE MATTER OF: DEEPAK KHOSLA & ORS.

.PETITIONERS

Vs.

HONBLE CALCUTTA HIGH COURT, & ORS.

RESPONDENTS

SYNOPSIS, & LIST OF DATES

1. 1861 : The Calcutta High Court came into being, by virtue of Indian High

Courts Act, 1861, followed by the Letters Patent of 1862.

2. 1879 : The Legal Practitioners Act was enacted.

3. 1914 : The Hon'ble High Court of Calcutta promulgated the Calcutta High

Court (Original Side) Rules, 1914, (presumably) in exercise of the relevant

empowering Clause in its Letters Patent and / or Section 122 of the Code of

Civil Procedure, 1908. These Rules defined the credentials and basis for

advocates desirous of practicing on the Original Side.

4. 1908 : The Code of Civil Procedure (1908) was enacted.

5. 1926 : The Bar Council of India Act (1926) was enacted.

6. 1961 : The Advocates Act (1961) was enacted, creating a unified Bar for

India, whereby many provisions of the Legal Practioners Act were repealed.

2

7. 09-01-2015 : The petitioner No. 1 (Mr. Deepak Khosla, Advocate), citing the

notifying of Section 30 of the Advocates Act (1961) with effect from 15-06-

2011, filed his application with Ld. Registrar (Original Side), seeking

insertion of his name in the Register maintained by him under Rule 2 of the

aforesaid Rules. He categorically stated that his request was without

prejudice to his rights to challenge that aforesaid archaic Rule, as it was not

only redundant after the notifying of Section 30 of the Advocates Act, but

was patently contrary to the aforesaid Act, and hence, an unreasonable

restriction that abrogated the Constitutional mandate enshrined in Article

19(1)(g) of the Constitution of India.

8. 09-01-2015 : Respondent No. 5, 6 and 7, citing the Original Side Rules,

hotly objected to Petitioner No. 1 appearing before the Court of Hon'ble Mr.

Justice Anirudh Bose, arguing that he had no right appear on the Original

Side, as his name had not been inserted in the Register maintained under

Rule 2 of the Original Side Rules.

9. 11-01-2015 : The petitioner No. 1 filed his objections with Ld. Registrar

(Original Side), placing on record the numerous violations of the Calcutta

High Court (Original Side) Rules, 1914 by Khaitan & Company, and some

advocates who claimed right of audience on the strength of their alleged

engagement to plead by Khaitan & Co. He urged him to take action against

them in accordance with law as mandated by Rule 16, as they were

committing criminal contempt of court in the very proceedings that he was

appearing in. (Rule 16 makes it mandatory for the Registrar to issue such

offender a Show-Cause Notice, returnable to Ld. Judge in chambers, as to

3

why the offending advocate or law firm should not be debarred from

practicing, including appearing, on the Original Side.)

10. 22-01-2015 : The Ld. Registrar (Original Side) rejected the application of

the Petitioner No. 1 for insertion of his name in the Register maintained

under Rule 4, on the sole grounds that he is not registered with the Bar

Council of West Bengal. But he continues to take no action against

Respondent No. 4, 5, 6 and 7 for their infraction of the Original Side Rules,

consequent to which infractions they cease to be eligible to practice on the

Original Side.

11. 22-01-2015 : Hence, this petition is filed before this Hon'ble Court, seeking

parity / equal treatment for all, but more so that the criminal contempt of

court that is taking place, inter alia, in CP No. 33 of 1988 at the behest of

Respondent No. 4 to 7 is immediately arrested, as proccedings are not going

forward, or are going forward in gross violation of law, thereby creating a

loop-hole for the Respondents or their clients to demand a very damaging

roll-back, which would be extremely prejudicial, inter alia, to Petitioner Nos.

2 and 3, the latter individual being as much as 93 years old, and entitled to a

fair and speedy resolution of his grievances in his lifetime.

Sd/-


Suite No. 408, 4th Floor Center Point

21 Old Court House Street (also known as Hemant Basu Sarani)

KOLKATA -700 001

4






.PETITIONERS

Vs.


RESPONDENTS

POINTS INVOLVED

This petition raises several substantial questions of law of constitutional and

public importance as they concern the protection of fundamental rights of the

petitioner, which may be summarized as follows:

Question 1 : Whether any person or firm not registered to practice as an

advocate in the Register maintained by the Ld. Registrar (Original Side)

under Rule 2 of the Calcutta High Court (Original Side) Rules, 1914 can be

permitted by this Hon'ble Court to practice on the Original Side ?

Answer of the petitioner : The Rules on the Original Side are very clear. The

Respondents themselves have invoked the Rules to seek restraint against

others. Therefore, since, in law, what is sauce for the goose is sauce for the

gander, means that it is the Respondents own case that all persons who

do not qualify by these Rules, even if it be themselves, must be denied

permission by the Ld. Registrar (Original Side) from acting, including

appearing, on the Original Side, as set out in Rule 8.

5

Question 2 : Whether an advocate otherwise eligible to practice as an

advocate but not a Partner of a law firm be permitted to act on the

strength of a vakalatnama executed in the name of the firm ?

Answer of the petitioner : No. Such advocate would be in breach of

multiple provisions of law.



strength of a vakalatnama executed in the name of the firm but not

accepted by him?

Answer of the petitioner : No. Such advocate would be in breach of

multiple provisions of law, as no contract or representation has been

executed by him. By the doctrine of election, an advocate can elect

whether to practice as an advocate in independent practice, or elect to

practice as a Partner of a law firm. But there is no provision for an

advocate to be a non-partner employee of a law firm, and then act as if is

the advocate engaged by the client, merely because the client, attracted by

the partners of the firm, has appointed the firm to act for him.



strength of a vakalatnama executed in the name of the firm and accepted

by him ?

6

Answer of the petitioner : No. Such a vakalatnama would be a nullity in

law, as the contract of representation (under the laws relating to agency)

can come into being only when accepted by a duly-authorised Partner.

Question 4 : Whether a law firm may be permitted to use a name that

does not reveal who its Partners are ?

Answer of the petitioner : No. Such firm would be in breach of the letter as

well as the spirit of Rule 9 (c) of the Calcutta High Court (Original Side)

Rules, 1914.

Question 5 : Whether a law firm may be permitted the use of the phrase

& Company in its name ?

Answer of the petitioner : No, this would be in violation of Rule 9 (c), as

well as Rules of other High Courts which also would apply here, mutatis

mutandis. And if at all Respondent No. 2 has approved the name of a firm

with the phrase & Company as a suffix in it, as his act, undoubtedly

inadvertent, would be a nullity in law, as it would have been without any

jurisdiction / competence / or authority in his hands to do so.

Sd/-



[email protected]




7






.PETITIONERS

Vs.


RESPONDENTS

PROFORMA

Sd/-



[email protected]




8

T. No. _____________ of 2015

W.P. No. _____________ of 2015

IN THE HONBLE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE

IN THE MATTER OF : An application under Article 226 & 227 of the Constitution of India;

AND IN THE MATTER OF : The Calcutta High Court (Original Side) Rules, 1914


Section 34 of the Advocates Act, 1961

AND IN THE MATTER OF : The Contempt of Courts Act (1971), read with Article 215 of the Constitution of India

AND IN THE MATTER OF : Inaction and/or refusal of the Respondents in not suittably restraining Respondent No. 4 (Khaitan & Co) from practicing in the Hon'ble High Court of Calcutta on its Original Side despite their multiple violations of the aforesaid Rules.


Discriminatory inaction (by way of turning of the proverbial Nelsons Eye) to blatant infractions of the law by a powerful firm of advocates, thus, indicating intent by the powers-that-be to shield and protect offenders from the punishment legally due to them only owing to the size, clout and prominence of the offenders.


Facilitation and / or abetment by the High Courts Registry officials of conduct by Khaitan & Co that squarely constitutes criminal contempt of court.

IN THE MATTER OF :

1. MR. DEEPAK KHOSLA

An advocate, having his office at Suite

9

No. 408, 4th Floor, Center Point, 21 Old Court House Stret (now known as Hemant Basu Sarani), KOLKATA 700 001 and permanent residence at D-367 Defence Colony, New Delhi 110 024

2. M/s HUNGERFORD INVESTMENT TRUST LTD

(in voluntary liquidation), a Company registered in, and under the laws of, Singapore, having its Regd. Office : 36, Tanjong Penjura, Singapore, and also at 1-B Judges Court Road, Kolkata 700 027, acting through its Chairman, Mr. Nirmal Jit Singh Hoon

3. MR. NIRMAL JIT SNGH HOON

aged about 93 years, a PIO citizen of UK, resident (when in India) of 10/3 NRI Colony, Greater Kailash-IV, New Delhi, presently at 1-B Judges Court Road, Kolkata 700 027.

.PETITIONERS

Versus

1. HONBLE HIGH COURT OF CALCUTTA

(In its administrative capacity) Acting through its Ld. Registrar General, KOLKATA 700 001

2. LD. REGISTRAR (Original Side)

Honble High Court of Calcutta, KOLKATA 700 001

3. LD. REGISTRAR (Appellate Side)

Honble High Court of Calcutta, KOLKATA 700 001

4. KHAITAN & CO

A partnership firm claiming to be a firm of advocates, having their office at Emerald house, Old Post Office Street, KOLKATA 700 001

5. MR. RATNESH RAI

An advocate working with Khaitan & Co, having its office at Emerald house, Old Post Office Street, KOLKATA 700 001

6. MR. UTPAL BOSE

10

An advocate (now a Senior Advocate), claiming to be briefed by Mr. Ratnesh Rai and/or Khaitan & Co. in CP No. 33 of 1988, having its office at Emerald house, Old Post Office Street, KOLKATA 700 001

7. MR. JOY SAHA

An advocate claiming to be briefed by Mr. Ratnesh Rai and/or Khaitan & Co. in CP No. 33 of 1988, having its office at Emerald house, Old Post Office Street, KOLKATA 700 001

8. BAR COUNCIL OF WEST BENGAL Acting through its Secretary c/o High Court, Kolkata

9. BAR COUNCIL OF INDIA Acting through its Secretary Rouse avenue Instituitonal area IP Estate New Delhi

.RESPONDENTS

PETITION UNDER ARTICLE 226 AND 227 OF THE

CONSTITUTION OF INDIA SEEKING, INTER ALIA, ISSUANCE OF A

WRIT OF MANDAMUS TO LD. REGISTRAR (ORIGINAL SIDE),

SEEKING PERFORMANCE OF HIS STATUTORY DUTIES IN

ACCORDANCE WITH LAW, AS STIPULATED IN RULE 16 THE

CALCUTTA HIGH COURT (ORIGINAL SIDE) RULES, 1914.

To,

The Honble Chief Justice Dr. (Ms.) Manjula Chellur,

and

her Companion Judges of the

Honble High Court of Calcutta at Kolkata.

The Humble petition on behalf of the Petitioners above named:-

MOST RESPECTFULLY SHOWETH :

11

1. The instant writ petition is filed under Article 226 and 227 of the

Constitution of India for enforcement of the fundamental rights of the

petitioners, and for uniform enforcement of the law against a large and

powerful law firm (vis. Respondent No. 4, Khaitan & Company), for its

multiple infractions of the law de hors the preceding factors, which are

wholly irrelevant in the unblinking and impartial eyes of the Law, before

whom all are equal.

2. The petitioner No. 1 is a citizen of the country, and hence, eligible to

invoke the jurisdiction of this Hon'ble Court under the powers conferred

upon by it by Article 226 of the Constitution of India against entities that

are State. He is an advocate within the meaning of the word as defined

in the Advocates Act (1961), and is duly registered under the aforesaid Act

with the Bar Council of Karnataka, and practices in many locations all over

India, having clients / matters in Karnataka (Bengaluru), Delhi, H. P.,

Uttrakhand, Maharashtra (Mumbai), West Bengal (Kolkata), etc. Petitioner

Nos. 2-3 are his clients, who have litigation pending before this Hon'ble

Court. (Petitoner Nos. 1-3 are collectively referred to herein as

petitioner.) By virtue of notifying of Section 30 of the Advocates Act as

operative with effect from 15-06-2011, petitioner No. 1 now has a

fundmental right guaranteed to him by Article 19(1)(g) of the Constitution

of India to practice his profession of advocacy anywhere in India, with a

corresponding right of audience before any Court across the country.

3. The petitioner is aggrieved by the fact that the Calcutta High Court is still

purporting to operate under the Calcutta High Court (Original Side) Rules,

1914 (hereinafter referred to as the Original Side Rules), some of whose

12

provisiuons he has challenged separately. However, till such time as the

challenge is entertained and succeeds, those Rules are very much law,

which bind all concerned persons. The grievance in the present petition is

on account of the discriminatory treatment meted out to Petitioner No. 1

(at the instigation and prompting of Respondent Nos. 4-7) while taking no

action against Respondent No. 4 7, whose infractions / non-compliance

of the same Rules is much larger, even heinous, leading to the polluting of

judicial proceedings in which Petitioner 2 and 3 are participants, and in

which Petitioner No. 1 is desirous of acting as an advocate, and has been

engaged by Petitioner 2-3 for that very purpose, but is being obstructed in

that endeavor by the acts of criminal contempt being committed therein

by Respondent Nos. 4,-7, and also, by Respondent No. 2 [vis. Ld. Registrar

(Original Side)] at the prompting and instigation of Respondent No. 4 and

its partners and / or associates.

A copy of the Calcutta High Court (Original Side) Rules (1914), as amended

up to date, are appended hereto, and is marked as Annexure 1.

DECLARATION ON IMPLEADMENT OF ALL AFFECTED PARTIES :

4. That to the best of the understanding of the petitioner, all the persons /

bodies / institutions likely to be affected by the orders sought in the

present writ petition have been impleaded by him as Respondents, and

that to best of the knowledge as well as understanding of the petitioner,

that to the extent that they are practically impleadable, no other persons /

bodies / institutions are likely to be adversely affected by the orders

sought in the writ petition.

13

Nonetheless, if any such body / person / institution exists, the petitioner

has no hesitation in their seeking impleadment in the same, as the

petitioner shall not, and hereby undertakes that he shall not, oppose the

prayer of any person who seeks impleadment in the present matter as a

Respondent so long as the motives for doing so are not with intent to

delay the due course of judicial proceedings, or such-like motivated

reasons.

5. That the Respondent Nos. 1-3 all are State (or public servants deemed

as State) within the meaning of Article 12 of the Constitution of India, and

hence, are amenable to the ordinary jurisdiction of this Honble Court

provided by Articles 226 of the Constitution of India for any act or acts

being illegal or improper or inappropriate, more particularly in case of

illegal, or discriminatory, or unreasonable, or arbitrary, or other acts of

the Respondents Nos. 1-3 not being in accordance with both the letter of

the law as well as its spirit, where the word acts used herein includes

those of commission or even of omission1.

6. That the Respondents are further elaborated upon below, the inclusion of

each being arrayed as a party in the present writ petition so as to not let

the petition suffer, or risk to suffer, for a non-joinder of parties.

They have been arrayed either because they are necessary parties in the

present proceedings (because in their absence, no order can be made

effectively, or because the orders sought directly affect their rights or

1 Please see Section 32 of the Indian Penal Code omissions are as punishable as acts of commission.

14

vitally affect them, and therefore, by the principles of natural justice, no

order ought to be passed by this Hon'ble Court behind their backs), or

because they are proper parties (because in their absence, an effective

order, though perhaps possible to be made, would obstruct, or not

facilitate, a complete and final decision on the questions involved in the

proceeding), or both.

The inclusion of these Respondents is in light of the criteria spelt out, inter

alia, by a 4-Judge Bench of the Hon'ble Supreme Court in the case of Udit

Narayan Singh vs. Board of Revenue, Bihar (AIR 1963 SC 786), read with

the views of a Full Bench of the Hon'ble Supreme Court expressed in the

case of Prabodh Verma vs. State of Uttar Pradesh (AIR 1985 SC 167).

It is to be respectfully stated that the necessity for their inclusion in the

present proceedings is at great incremental cost to the petitioner (in

terms of being required to serve that many additional copies, in terms of

being required to read, analyze and study that many more counter-

affidavits, in terms of having to prepare that many more rejoinder

affidavits, etc), but who has volunteered to suffer this additional cost and

burden only in order to comply with the dicta of the Hon'ble Supreme

Court in regard to what ought to be a proper and complete array of

parties ; hence, despite this burden of additional cost adversely affecting

the petitioners interests, these Respondents have been arrayed by him

also as necessary parties as any view taken by this Hon'ble Court based

on the response from the other State Respondents on the issues raised

herein, including general civil consequences of the writs of certiorari or

mandamus requested herein, as well as / or potential culpability and/or

15

consequences thereof that will or may ensue, will undoubtedly affect the

position of some of these Respondents also. Hence, all these Respondents

deserve an opportunity of being heard before any decision is taken by this

Hon'ble Court on the issues set out herein.

The Respondents are as follows :

a) Respondent No. 1 is the Hon'ble High Court of Calcutta, acting in its

administrative capacity, acting through its Ld. Registrar General. It is

arrayed as reliefs are sought against it, and its Rules on the Original

Side are sought to be enforced.

b) Respondent No. 2 is the Ld. Registrar (Original Side) of the Hon'ble

High Court of Calcutta. He is arrayed as the onus to issue a Show-Cause

Notice in terms of Rule 16 of the Original Side Rules to Respondent No.

4 to 7 to show cause to Hon'ble Judge in chambers why they should not

be debarred from practicing on the Original Side is on him, but who is

not issuing the same, even though their reprehensible breaches are

writ large on the face of the record, and have been complained of

formally by Petitioner No. 1 as far back as on 09-01-2015.

c) Respondent No. 3 is the Ld. Registrar (Appellate Side) of the Hon'ble

High Court of Calcutta. He is arrayed as certain directions are required

to be issued to him in relation to the Rules.

d) Respondent No. 4 is M/s Khaitan & Co, allegedly a partnership firm,

that claims the right to practice in such an avatar on the Original Side

16

of this Hon'ble Court as an advocate. However, they do not qualify so,

and despite service of the letter dated 09-01-2015 addressed to Ld.

Registrar (Original Side) on them in open Court on 13-01-2015, have

still insisted on doing so. Furthermore, they describe themselves as &

Company in their name even though the use of the phrase and

Company is prohibited by many High Courts under Rules framed by

such High Courts under Section 34 of the Advocates Act, including the

Hon'ble High Court of Karnataka, at whose principal city (Bengaluru)

Respondent No. 4 also has an office, and impermissibly and illegally

practices there also as, and under the name and style of, Khaitan &

Co..

e) Respondent No. 5 is one Mr. Ratnesh Rai, allegedly an advocate. He

allegedly works with Respondent No. 4 (Khaitan & Co.), but as per

informal reports gleaned by the petitioner, is not a partner of the

aforesaid firm. This being so, he has no right to practice on the Original

Side of this Hon'ble Court. Even otherwise, it appears after making

informal inquiries from the office of Respondent No. 2 that he has not

obtained insertion of his name in the Register maintained by

Respondent No. 2 [Ld. Registrar (Original Side)] under Rule 2 of the

Original Side Rules, as a consequence of which he, as per his own

argument put forth before Court No. 24 on 09-01-2015 and other

dates, has no right to practice or seek audience on the Original Side.

Thus, certain directions are sought to be issued to him, so that he does

not interfere in the due course of judicial proceedings, and in the

adminstration of justice.

17

f) Respondent No. 6 is one Mr. Utpal Bose, allegedly an advocate, now

reported to have been designated by this Hon'ble Court vide

Notification No. 2852-A dated 09-06-2014 as a Senior Advocate

within the meaning of the phrase as used in Section 16 of the

Advocates Act (1961) with effect from 30-06-2014. He has been

appearing in CP No. 33 of 1988 since about 2005 or thereabouts,

claiming right to do so as he allegedly has been briefed by Respondent

No. 4 (Khaitan & Co.) / Respondent No. 5 (Mr. Ratnesh Rai), but as per

informal reports gleaned by the petitioner, did not ever file a

vakalatnama to entitle him to so appear in those proceedings. This

being so, his appearance and arguing full-blown pleadings (i.e. other

than ministerial pleadings) is totally illegal. Also, prior to his being

designated as a Senior Advocate, he has not sought correction of

various Court orders passed in various matters, in which he has been

described by the Honble Court concerned (perhaps erroneously) as

Senior Counsel, or senior advocate, even though he had a duty to do

so, so as to not have it alleged against him that he had fraudulently laid

claim to a professional status that he did not possess. He has been

appearing in CP No. 33 of 1988 in January 2015 onwards as Senior

Advcoate being briefed by Khaitan & Company / Mr. Ratnesh Rai, even

though he well knows that they have no right to audience on the

Original Side, meaning that he, too, therefore, by the well-settled

principle of cadit opus fondamento sublato2, would have no right of

audience himself on the Original Side in this particular matter. Even

otherwise, it appears after making informal inquiries from the office of

Respondent No. 2 [Ld. Registrar (Original Side)] that he has not

2 When the foundations falls, the structure falls.

18

obtained insertion of his name in the Register maintained by

Respondent No. 2 under Rule 2 of the Original Side Rules, as a

consequence of which, as per his own argument put forth before Court

No. 24 on 09-01-2015 and other dates, he has no right to practice or

seek audience on the Original Side.

g) Respondent No. 7 is one Mr. Joy Saha, allegedly an advocate. He has

been appearing in CP No. 33 of 1988 since about 09-01-2015, claiming

right to do so as he allegedly has been briefed by Respondent No. 3

(Khaitan & Co.) / Respondent No. 4 (Mr. Ratnesh Rai), but as per

informal reports gleaned by the petitioner, did not ever file a

vakalatnama to entitle him to so appear. This being so, his appearance

and arguing full-blown pleadings (i.e. other than ministerial

pleadings) is totally illegal. He has been appearing in CP No. 33 of 1988

as non-Senior Advocate being briefed by Khaitan & Company / Mr.

Ratnesh Rai, even though he well knows that they have no right to

audience on the Original Side, meaning that he, too, therefore, by the

well-settled principle of cadit opus fondamento sublato, would have no

right of audience himself on the Original Side, at least in the

aforementioned proceeding. Even otherwise, it appears after making

informal inquiries from the office of Respondent No. 2 [Ld. Registrar

(Original Side)] that he has not obtained insertion of his name in the

Register maintained by Respondent No. 2 under Rule 2 of the Original

Side Rules, as a consequence of which he, as per his own argument put

forth before Court No. 24 on 09-01-2015 and other dates, has no right

to practice or seek audience on the Original Side.

19

h) Respondent No. 8 is the Bar Council of West Bengal. They have been

arrayed as the licence of the advocates who are partners, associates,

employees of Khaitan & Co to practice the law is sought to be cancelled

for gross professional misconduct, by taking suo motu cognizance of

the vile acts of reprehensible professional misconduct committed by

them. (However, owing to the high possibility of misplaced loyalties of

Respondent No. 8, as back-up, Respondent No. 9 also is arrayed for the

reasons set out alongside its name.)

i) Respondent No. 9 is the Bar Council of India. It is arrayed as

directions are sought to it to transfer the case of professional

misconduct from the Bar Council of West Bengal to itself under Section

35 of the relevant Rules for disciplinary proceedings, because owing to

the clouot Respondent No. 4 and its partners enjoy in the State of West

Bengal, it is unlikely that any action, other than mere pro forma

(merely for public consumption) will be taken by Respondent No. 8

against Respondent No. 4.

HISTORICAL EVOLUTION OF THE LAW ON ADVOCATES RIGHTS AND

DUTIES

7. The historical evolution of the law on the rights and duties of advocates

can be seen from the following events, presented chronologically below :

Sl.

No.

DATE

EVENT

1. 1772 By an Act of Settlement, the British Parliament

20

recognized the prerogative of the East India

Company to administer civil justice through

Sadar Diwani Adalats, in terms of the authority

so received by it from the Mughal Emperor.

2. Prior to 1780 Justice was dispensed by Adalats, which were

assisted by Pandits and Maulvies. Their

opinions were generally accepted by the Courts

while handing out a verdict.

3. 1774 The Supreme Court started functioning at

Calcutta. However, Indians were not allowed to

practice there, and it was only the preserve of

English Barristers. As a direct result of this

anomaly, its functioning was marred by the first

case itself (that of Maharaja Nanda Kumar, who

was defended by Thomas Farrer). As the British

Barristers did not know the local language, the

complications arising from such ignorance (and

even the law that was applicable) resulted in a

blatant miscarriage of justice in that case, which

smeared the first Court erected in India by a

statute of British Parliament.

4. 1780 Regulation of 1780 was passed by the East India

Company for the Sadar and Provincial Diwani

Adalats. In its 13th section, it spoke of vakeels who

could put questions to witnesses. Immediately

21

prior to this, the real job of lawyers was being

performed by Pandits and Maulvies.

5. 1793 When the Vakeels previously appeared in the

Adalats, no enquiries were made to ascertain

whether they were qualified to plead the cause. As

a result, many a time, trials were protracted

because of production of unnecessary exhibits, or

asking of irrelevant questions, etc. The

authorities, therefore, decided that pleading of

causes should be made a distinct profession. It

was decided that no person should be admitted to

plead in the Courts unless he was a man of

character and education, and well-versed in the

Mohammedan or Hindu Laws, and in the

Regulations enforced by the Company.

Hence, Bengal Regulation No. VII of 1793 was

enacted. By its means, for the first time, a regular

legal profession for the courts was set up by the

East India Company. By its means, it also provided

for appointment of Native Pleaders in the Courts

of Civil Judicature for the Provinces of Bengal,

Bihar and Orissa. It was also decided that these

lawyers should be subjected to rules and

restrictions calculated to ensure to their clients a

diligent and faithful discharge of the trusts

reposed in them by their clients as well as by the

22

courts. The Regulation authorized the Sadar

Diwani Adalat to admit a suitable number of

vakeels, to issue them Charter to practice in

different courts, and to prescribe qualifications for

their enrolment. It also provided for disciplinary

jurisdiction of the Sadar Diwani Adalats on the

vakeels.

It is, perhaps, from this time onwards that the

phrase Officer of the Court is being used to

describe a pleader, as he had official sanction as

well as support of the specific court before whom

he practiced.

6. 1814 Regulation XXVII of 1814 brought about some

changes in the legal profession. It prohibited

practice of law by persons other than those

enrolled by the Sadar Diwani Adalats, and

restricted the profession to individuals of Hindu

and Mohammedan persuasion.

7. 1833 The invidious communal provision in the

Regulation of 1814 was abolished by the

Regulation XII of 1833, and the office of

pleaders was made open to persons of all

religions or nationality. As a result, thereafter,

every qualified person became eligible to be

enrolled as a pleader of the Sadar Diwani Adalat.

23

8. 1861 The Indian High Courts Act of 1861 came to be

enacted.

9. 1862 The Letters Patent of 1862 was passed into law.

Clauses 7-10 of the Letters Patent empowered the

High Courts to admit 3 classes of practitioners :

advocates, vakeels and attorneys, and to exercise

disciplinary jurisdiction over them.

10. 1865 The Revised Letters Patent of 1865 was enacted,

whereby its Clause 9 authorised the High Courts

to approve, admit and enroll 3 classes of

practitioners : Advocates, Vakeels, and

Attorneys. Advocates in this sense meant

Barristers. The persons so admitted were

entitled to appear for the suitors of the High

Courts, and to plead or act according to the rules

framed by the High Courts, or directions issued to

them.

11. 1866 The Madras High Court allowed Vakeels who,

hitherto, were only allowed to appear on its

Appellate Side, to also appear on its Original Side.

(The logic of previously allowing them to appear

only on the Appellate Side was that the High

Court, in its Appellate jurisdiction, was an

extension of the Sadar Diwani Adalats.)

12. 1879 The Legal Practitioners Act of 1879 was enacted,

24

which made important changes in the law, namely

:

(a) the office of pleader was now thrown open to

all persons of any nationality or religion, so long

as they were duly certified by the Sadar Diwani

Adalat ;

(b) the definition of legal practitioner now

included 6 categories viz. advocate or vakil or

attorney of any High Court, and also, a pleader,

mukhtar or revenue agent.

(c) Attorneys and Barristers of Her Majestys

Courts (usually, Englishmen) who, thus far, were

not permitted to practice, as of right, in the Sadar

Diwani Adalats, were now allowed to plead in the

Adalats, subject to rules in force in such Adalats ;

(d) the pleaders were permitted to enter into

agreements with their clients for their fees for

professional services.

(e) For the first time, elaborate provisions were

made in respect of disciplinary jurisdiction over

the pleaders.

The consequence of this Act was that from now

on, though Barristers and Attorneys (usually,

Englishmen) were permitted to practice in the

courts erected by the East India Company (the

25

Sadar Diwani Adalats), however, an Indian legal

practitioner could not appear before the Supreme

Courts.

13. 1886 Under the amended Rules of the Madras High

Court, a law graduate was qualified to be admitted

as a Vakeel if he passed an examination in

procedure and underwent practical training with

a practicing lawyer for a year. Thus, from now on,

in the Madras High Court, there was no distinction

between Barristers, Vakeels and Attorneys insofar

as zone of practice was concerned, and under its

Rules, Vakeels and Attorneys could also act on its

Original Side.

However, this was not so, for example, with the

Bombay High Court, where vakeels still could not

act or plead on its Original Side.

14. 1899-1908 During the tenure of Chief Justice Jenkins of the

Bombay High Court, while there was institutional

persuasion to get talented Vakeels to start to

practice on its Original Side, however, this was

still subject to the limitation that the Advocates of

the Original Side, whether Barristers or non-

Barristers, had to be instructed by an Attorney

before they could appear and plead on the

Original Side.

26

But in Calcutta, only the Advocates (i.e. the

Barristers of England and Ireland, and the

Advocates of Scotland) were entitled to appear

and plead on its Original Side, although on the

instructions of an Attorney. They were also

entitled to appear and plead on the Appellate Side.

However, Vakeels were not entitled to act or

plead before the High Court (successor to the

Supreme Court) on the Original Side, or even in

appeals from the Original Side, and could only act

and plead in the Sadar Diwani Adalats, and in

appeals before the High Court from matters

before the Sadar Diwani Adalats.

As a result, Advocates (Barristers) could only

appear and plead on the Original Side on the

instructions of an Attorney empowered to act on

the Original Side, whereas on the Appellate Side,

they were allowed both to act and plead, as in the

Sadar Diwani Adalats.

Thus, there came to be an invidious distinction in

the Calcutta High Court (which, then, was the

capital of the Indian Empire) between the rights of

Barristers, Vakeels and Attorneys, and it is from

this distinction that grew the practice on its

Original Side that pleading would be confined to

27

Barristers, and acting to Solicitors, whereas on

its Appellate Side, even vakeels could plead as

well as act, just as they did before the Sadar

Diwani Adalats.

15. 1908 The Code of Civil Procedure was enacted.

Keeping in mind the three distinct classes of legal

practitioners in existence under The Legal

Practitioners Act of 1879 (i.e. Barristers, Vakeels

and Attorneys), and in order to render itself

harmonious with the then-prevailing practice of

the Chartered High Courts under the Letters

Patent of making provisions of who, under The

Legal Practitioners Act of 1879, could act, and

who could appear and who could plead,

provided in Order III Rule IV, a sub-Rule V, and

also, a proviso to the same.

The contents of the same are reproduced below,

because from a plain reading of these provisions,

it is clear that these provisions were inserted in

the Code to meet the legal exigencies of that time

as existing under The Legal Practitioners Act of

1879, but after enactment of The Advocates Act of

1961, these provisions are now patently

redundant, as well as contrary to law :

28

(5) No pleader who has been engaged for

the purpose of pleading only shall plead on

behalf of any party, unless he has filed in

Court a Memorandum of Appearance

signed by himself and stating :-

(a) the names of the parties to the

suits,

(b) the name of the party for whom

he appears, and

(c) the name of the person by whom he is

authorised to appear :

Provided that nothing in this sub-rule shall

apply to any pleader engaged to plead on

behalf of any party by any other pleader

who has been duly appointed to act in

Court on behalf of such party.

The fact that the Code of Civil Procedures

provisions relating to pleaders were framed by

the contents of The Legal Practitioners Act of 1879

is self-evident from the Definition of pleader at

Section 2(15) of the Code, which is now totally

contrary to the Advocates Act of 1961, as it says as

follows :

29

2(15) "pleader" means any person entitled to

appear and plead for another in Court, and includes

an advocate, a vakil and an attorney of a High

Court;

This triple terminology has now been rendered

redundant by the Advocates Act of 1961, clearly

showing the need for re-visiting the Code, and

therefore, also re-visiting the real and

concurrently-contextual meaning of Order III Rule

4s sub-rule (5) (especially including its proviso), if

not its very existence.

16. 1914 The Hon'ble High Court of Calcutta promulgated

the Calcutta High Court (Original Side) Rules, 1914,

(presumably) in exercise of the relvant

empowering Clause in its Letters Patent and / or

Section 122 of the Code of Civil Procedure, 1908.

These Rules defined the basis and credentials for

advocates desirous of practicing on the Original

Side.

17. 1923 In November 1923, a private Bill was moved in

the Central Legislative Assembly to amend the law

as to legal practitioners, and to create an All-India

Bar. In consequence, the Government constituted

the Indian Bar Committee under the

Chairmanship of Sir Edward Chamier who had

30

been the Chief Justice of the Patna High Court, and

then, the Legal Adviser and Solicitor to the

Secretary of State of India at London.

18. 1924 In February 1924, the Chamier Committee

submitted its report. It did not consider it feasible

to organize the Bar on an All-India basis, or to

constitute an All India Bar Council.

Instead, it suggested that :

a) in all the High Courts, there be established a

single grade of practitioners entitled to

plead, who should be called Advocates,

the only distinction being that if special

conditions are placed for admission to

plead on the Original Side, the distinction

within that single grade being those

entitled to appear on the Original Side, and

those not entitled to do so.

b) Subject to certain conditions being fulfilled,

Vakeels should also be allowed to plead on

the Original Side of the three Chartered

High Courts i.e. Calcutta, Madras and

Bombay.

c) Each High Court should constitute a Bar

Council, which should have the power to

enquire into matters calling for disciplinary

31

action against a lawyer ; and

d) The disciplinary powers should rest with

the High Court, but before taking any

action, it should refer the matter to the Bar

Council for enquiry and report.

19. 1926 To implement the recommendation of the

Chamier Committee, the Indian Bar Council Act

of 1926 was enacted, which to some extent

brought about the unification and autonomy of

the Bar. By this, it allowed the High Courts to

retain its power to prescribe who could appear on

its Original Side, and who could not. As a result,

advocates enrolled with other High Courts could

not, as a matter of right, appear in other High

Courts ; they could do only with prior permission

of the Chief Justice, which many a time was

denied.

20. 1949 The Bombay High Court took the first step of

doing away with two Bars, though it retained the

distinction that Advocates could still not act on

the Original Side unless instructed by Attorneys.

21. 1951 In response to persistent and wide-spread

demand for an All-India Bar, the Government of

India appointed the All-India Bar Committee

under the chairmanship of Justice Mr. S. R. Das of

32

the Supreme Court.

22. 1951 The Supreme Court Advocates (Practice in High

Courts) Act, 1951 was enacted.

23. 1952 On a challenge raised by Mr. Aswini Kumar Ghosh

(an Advocate practicing in the Supreme Court) to

the refusal of the Calcutta High Court to allow him

to appear there, in a majority 3:2 decision of a 5-

Judge Bench, it was held that an Advocate of the

Supreme Court was entitled as of right to appear

and plead as well as to act in all the High Courts.

(Justice Mr. S. R. Das, Chairman of the All-India

Bar Committee constituted in 1951, was one of

the two dissenting Judges.)

24. 1960 The Bombay High Court allowed that in limited

areas, an Advocate could appear and plead on the

Original Side without being instructed by an

Attorney, areas such as applications under Article

226 of the Constitution, and in taxation matters

such as those relating to Income Tax, Wealth Tax,

Gift Tax, etc.

25. 1961 Owing, inter alia, to rising costs for litigants on the

one hand by the dual system of Attorneys and

Advocates (Barristers), and objections from

within the profession on the other, the Advocates

Act of 1961 was enacted, which unified all the

33

four classes of legal practitioners existing hitherto

(i.e. pleaders, vakeels, Advocates, and

Attorneys), and from that date onwards, there is

only one single class of Advocate who is entitled

to practice the profession of law in India, from the

lowest to the highest court in the land.

Most significantly, by its Section 51, it stipulated

as follows :

51. Rule of construction.- On and from the

appointed day, references in any enactment to an

advocate enrolled by a High Court in any form of

words shall be construed as references to an

advocate enrolled under this Act.

By its Section 50, it also repealed the following

enactments, including those of the Letters

Patent as specified therein :

50. Repeal of certain enactments.- (1) On the

date on which a State Bar Council is constituted

under this Act, the provisions of sections 3 to 7

(inclusive), sub-sections (1), (2) and (3) of section 9,

section 15 and section 20 of the Indian Bar Councils

Act, 1926 (38 of 1926), shall stand repealed in the

territory for which the State Bar Council is

constituted.

34

(2) On the date on which Chapter III comes into

force, the following shall stand repealed, namely:--

(a) sections 6, 7, 18 and 37 of the Legal

Practitioners Act, 1879 (18 of 1879), and so much

of sections 8, 9, 16, 17, 19 and 41 of that Act as

relate to the admission and enrolment of legal

practitioners;

(b) sections 3, 4 and 6 of the Bombay Pleaders

Act, 1920 (Bombay Act 17 of 1920);

(c) so much of section 8 of the Indian Bar

Councils Act, 1926 (38 of 1926), as relates to the

admission and enrolment of legal practitioners;

(d) the provisions of the Letters Patent of

any High Court and of any other law in so far as

they relate to the admission and enrolment of

legal practitioners.

(3) On the date on which Chapter IV comes into


(a) sections 4, 5, 10 and 20 of the Legal


of sections 8, 9, 19 and 41 of that Act as confer on

legal practitioners the right to practice in any court

or before any authority or person;

35

(b) sections 5, 7, 8 and 9 of the Bombay

Pleaders Act, 1920 (Bombay Act 17 of 1920);

(c) section 14 of the Indian Bar Councils Act,

1926 (38 of 1926) and, so much of sections 8 and 15

of that Act as confer on legal practitioners the right

to practice in any court or before any authority or

person;

(d) the Supreme Court Advocates (Practice in

High Courts) Act, 1951 (18 of 1951);

(e) the provisions of the Letters Patent of

any High Court and of any other law conferring

on legal practitioners the right to practice in

any court or before any authority or person.

(4) On the date on which Chapter V comes into


(a) sections 12 to 15 (inclusive), sections 21 to

24 (inclusive) and sections 39 and 40 of the Legal


of sections 16, 17 and 41 of that Act as relate to the

suspension, removal or dismissal of legal

practitioners;

(b) sections 24 to 27 (inclusive) of the Bombay

Pleaders Act, 1920 (Bombay Act 17 of 1920);

36

(c) sections 10 to 13 (inclusive) of the Indian

Bar Councils Act, 1926 (38 of 1926);

(d) the provisions of the Letters Patent of

any High Court and of any other law in so far as

they relate to the suspension, removal or

dismissal of legal practitioners.

(5) When the whole of this Act has come into

force--

(a) the remaining provisions of the Acts

referred to in this section which do not stand

repealed by virtue of any of the foregoing

provisions of this section (except sections 1, 3 and

36 of the Legal Practitioners Act, 1879) (18 of

1879) shall stand repealed;

(b) the enactment specified in the Schedule

shall stand repealed to the extent mentioned

therein.

26. 1962 The Bar Council of India Rules were enacted

under the Advocates Act of 1961. As per the

definition set out in Part I (Definitions) (b), an

advocate means an advocate enrolled in any roll

under the provisions of the Advocates Act. Part VI,

Chapter II, Section II, Rule 19 of the Rules states

that : An advocate shall not act on the instructions

37

of any person other than his client or his

authorized agent. (Explanatory Note : Authorised

agent cannot include another pleader, since

Rule 2 has defined agents in Rule 2(a) and Rule

2(b), and furthermore, Rule 3 also has

contextually defined agent.)

27. 17-04-1962 The Bar Council of West Bengal came into being.

28. 1973 The Code of Criminal Procedure, 1973 was

enacted. It used a different meaning for the word

pleader. Its Section 2(q) reads as follows : 2(q) :

"pleader", when used with reference to any

proceeding in any Court, means a

person authorised by or under any law for the time

being in force, to practise in such Court, and

includes any other person appointed with the

permission of the Court to act in such proceeding;

29. 1976 The Advocates (Amendment) Act was passed,

whereby the special provisions of Section 31

(relating to attorneys) were deleted.

30. 1992 In a judgment of the Bombay High Court in the

case of ONGC vs. Offshore Enterprises, Inc. (AIR

1993 Bomb 217), in a matter argued by many legal

luminaries (including Mr. A. P. Shah, as he was

then known, now Hon'ble Chairman of the Law

Commission, acting then as President of the

38

Maharashtra Bar Council, and Mr. G. E. Vahanvati,

etc), it was held that if a lawyer accepted a brief to

act as Attorney of a client (i.e. as his agent

within the meaning of Order III Rule 1), then he

could not act also simultaneously as his advocate

or pleader.

Therefore, if an advocate signs a Vakalatnaama in

favour of another advocate, means that he has

acted on his own Vakalatnaama as if he is the

agent or power-of-attorney of the client, rather

than his advocate.

This being the case, if one goes by the usual type

of language used in most Vakalatnaamas in Delhi

or Kolkata today, most advocates, if they actually

exercise the power shown therein (i.e. of engaging

another advocate) would have, perhaps, accepted

the brief to actually be the agents / power-of-

attorney holder of their clients, and not as their

advocates.

The Bombay High Court, by virtue of its Rules

framed under Section 34(1) of the Advocates Act,

has specifically prescribed the Model Form of

Vakalatnaama for its Courts.

31. 15-06-2011 Section 30 of the Advocates Act was notified and

went into force. With this, all the provisions of the

39

aforesaid Act now stand as in force, thus, by

virtue of Section 50(2)(d), Section 50(3)(e) and

Section 50(4)(d), repealing all contrary provisions

that may have evolved under, inter alia, Letters

Patent as well.

SPECIFIC FACTS OF THE PRESENT MATTER :

8. That Petitioner No. 1 has been engaged by Petitioner Nos. 2-3 to act in

their matters which are pending before this Hon'ble Court. Accordingly, in

discharge of his professional duties, he came to the Calcutta High Court to

argue some matters relating to Petitioner No. 2 on 09-01-2015 i.e. CP No.

33 of 1988, a matter specially assigned to the Court of Hon'ble Mr. Justice

Anirudh Bose, and some other matters.

9. That to his shock, during the hearing, instead of allowing the long-pending

matter to proceed on its merits, Respondent Nos. 5-7 tried their level best

to thwart his right to practice his profession, by raising all sort of frivolous

and vexatious objections to his appearance in the Court as an advocate.

Chiefly, they objected that as per Chapter I of the Original Side Rules, he

could not practice on the Original Side of this Hon'ble Court, on the

grounds that his name had not been inserted in the Register required to be

maintained by Respondent No. 2 [Ld. Registrar (Original Side)] under Rule

2 of the Original Side Rules.

10. That as a consequence, they unreasonably urged the Honble Court to deny

the Petitioner No. 1 the right of audience, even though the Honble court,

40

by virtue of the proviso to Rule 5 of the Original Side Rules, is empowered

to allow audience to any other person to appear before it in a particular

cause. Leave is craved to produce copies of the orders passed in CP No. 33

of 1988 from 09-01-2015 to 15-01-2015 at the time of hearing, as they

reflect the stubborn insistence of these individuals that as per the Original

Side Rules, the Petitioner No. 1 could not appear on the Original Side of

this Hon'ble Court.

11. That this objection was raised (and continued be raised) despite the

Petitioner No. 1 informing the Honble Court that Section 30 of the

Advocates Act had been notified with effect from 15-06-2011, and

consequently, he had a fundamental right guaranteed by Article 19(1)(g)

of the Constitution to practice before this Hon'ble Court. He further

pleaded that even otherwise, he had complied with the requirements of

Rule 4 of the Original Side Rules, no matter how unreasonable and

outdated as it may be. In evidence of his compliance, a copy of his letter

dated 09-01-2015 filed with Ld. Registrar (Original Side) was handed over

to the Honble Court, and a true typed copy of the same is appended

hereto, and is marked as Annexure 2.

12. That the Petitioner No. 1 further urged the Honble Court that in order to

allow retention of focus on the main issue before the Honble court and

not allow diversionary tactics of Respondent Nos. 5-7 to rule the day, it

may be pleased to exercise its powers in terms of the proviso to Rule 5.

However, no headway could be made owing to the disruptive manner of

urging of their submissions by Respondent Nos. 5-7.

41

13. That subsequently, pursuant to Petitioner No. 1 subjecting these Rules

cited by the Respondent Nos. 5-7 to obstruct Petitioner No. 1 from

discharging his professional duties both to the Honble Court as well as to

Petitioner No. 2 to 3 to closer scrutiny, the Petitioner No. 1 has found that

it is, in fact, Respondent Nos. 4-7 who are in blatant breach of the same

Rules that they attempted to enforce against Petitioner No. 1, even if it

meant obstructing his fundamental right granted to him by virtue of

Section 30 of the Advocates Act read with Section 50 of the same Act to

practice his profession before any Court in India, even before the Hon'ble

High Court of Calcutta.

14. In fact, unlike their allegation of purely technical issues against the

Petitioner No. 1, their own breaches are of such a heinous nature that they

do not constitute merely a clerical omission or inadvertent oversight by an

otherwise law-abiding person any more, but constitute virulently-potent

criminal contempt of court that is being consciously and deliberately

committed day-in and day-out by Respondent No. 4 (Khaitan & Company)

in practically every court of the Hon'ble High Court of Calcutta.

15. That in protest against such patently-illegal conduct by these

Respondents, Petitioner No. 1 caused a letter dated 09-01-2015 to be filed

with Respondent No. 2 [Ld. Registrar (Original Side)]. A copy of the same

is appended hereto, and is marked as Annexure 3.

16. That vide means of this detailed letter, Petitioner No. 1 pointed out as

many as 7 gross violations of the Rules by Respondent No. 4, and by

Respondent No. 5 to 7, violations which are nit minor, or technical in

42

nature. The petitioner craves leave to refer and rely upon each

submission made in the aforesaid letter as if reproduced herein in its

entirety, which is not being done so merely to maintain brevity in the

present petition, the onus being on the Respondents to deal with each and

every averment made therein so that they do not paint themselves into a

corner of evasive denial.

17. That despite serving letter dated 09-01-2015 on Respondent No. 2 [Ld.

Registrar (Original Side)], pointing out the blatant, even unconscionable

violations of law by Respondent No. 4 and its associates, Respondent No.

2 [Ld. Registrar (Original Side)] has not seen it fit to take any action as yet,

except to issue a formal, written confirmation to Petitioner No. 1 vide

letter dated 16-01-2015 acknowledging, inter alia, that the persons

appearing for the aforesaid Khaitan & Co in CP No. 33 of 1988 (vis.

Respondent Nos. 5 to 8) are not partners of the firm. A copy of this letter

dated 16-01-2015 is appended hereto, and is marked as Annexure 4.

18. That this inaction is shocking, since one of the areas of abuse is that Rule

9(g) stipulates as follows :

In every case when a partner of a firm of advocates acting on the

Original Side signs any document or writing on behalf of the firm, or

when a sole proprietor of a firm signs a document or writing on

behalf of the firm, he shall do in the name of the firm and shall

authenticate the same by affixing his own signature as a partner or as

a proprietor, as the case may be.

43

In blatant violation of this rule, it appears that Respondent No. 4, in order

to achieve its own convebience even if this be by deceiving the Hon'ble

courts, has been scribbling the phrase Khaitan & Co at the place where

the filing individual [who can only be a partner of the firm, and duly

registered as such as per Rule 2 read with Rule 9(d)] is supposed to affix

his own signature.

Therefore, it could very well be that it is Secretaries / Clerks / peons /

drivers of Respondent No. 4 who may have been signing the pleadings

filed before this Honble Court. This, apart from constituting criminal

contempt of court, also constitutes creation of false evidence, and the

pleadings as filed constitutes forgery in as much as it constitutes

creation of a false document within the meaning of the 2 words as used

in Section 463 and 464 of the Indian Penal Code, as they have purported to

create a document (the filing-eligible pleading) that meets the first

description of a false document as set out in Section 464 of the Indian

Penal Code, which says that a person is said to make a false document

when he dishonestly or fraudulently makes, signs, seals or executes a

document (or part of a document), or makes any mark denoting the

execution of a document, with the intention of causing it to be believed

that such document (or part of a document) was made, signed, sealed or

executed by (or by the authority of) a person by whom (or by whose

authority) he knows that it was not made, signed, sealed or executed,

or.

44

This would be clear from a sample filing done by Khaitan & Co in the

Hon'ble High Court of Calcutta, a copy of which is appended hereto, and

marked as Annexure 14.

In this regard, it is relevant to highlight even if an advocate working with

Khiatan & Company scrawled the phrase Khaitan & Company, a forgery

may have come into existence in light, inter alia, of Explanation I to

Section 464, which stipulates that A man's signature of his own name

may amount to forgery, read with its Illustration (a), which states that A

signs his own name to a bill of exchange, intending that it may be believed

that the bill was drawn by another person of the same name. A has

committed forgery.

This is because the signing advocate knows that the signature on the

pleading is that to be of a Partner only, and by executing the phrase

Khaitan & Co in his own handwriting in the pleading where the partner

is to sign, he has purported that the pleading has been signed by a Partner

of Khaitan & Co. in order to render the pelading or motion eligible to be

filed in this Hon'ble Court and placed for judicial consideration. That being

so, such reprehensible conduct squarely meets the definition of creation of

a false document within the meaning of Section 464 of the Indian Penal

Code, and therefore, of a forgery within the meaning of Section 463 of

the same Code, and both the executant and all the partners of Khaitan &

Company at the relvant time(s) are liable for criminal prosecution for this

reprehensible act of forgery, for a violatiom of the Indian Penal Code, as

well as for criminal contempt under the Contempt of Courts Act (1971)

45

read with Article 215 of the Constitution, as well as for blatant

professional misconduct under the Bar Council Rules.

The provisions of Section 463 and 464 of the Indian Penal Code are

reproduced for the ease of referral below :

463. Forgery.--Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. 464. Making a false document.--A person is said to make a false document- First.-Who dishonestly or fraudulently makes, signs, seals or executes a document (or part of a document), or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document (or part of a document) was made, signed, sealed or executed by (or by the authority of) a person by whom (or by whose authority) he knows that it was not made, signed, sealed or executed, or Secondly.-Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration. Illustrations (a) A has a letter of credit upon B for rupees 10,000, written by Z. A, in order to defraud B, adds cipher to the 10,000, and makes the sum 1,00,000 intending that it may be believed by B that Z so wrote the letter. A has committed forgery. (b) A without Z's authority, affixes Z's seal to a document purporting to be a conveyance of an estate from Z to A, with the intention of selling the estate to B and thereby of obtaining from B the purchase-money. A has committed forgery.

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(c) A picks up a cheque on a banker signed by B, payable to bearer, but without any sum having been inserted in the cheque. A fraudulently fills up the cheque by inserting the sum of ten thousand rupees. A commits forgery. (d) A leaves with B, his agent, a cheque on a banker, signed by A, without inserting the sum payable and authorizes B to fill up the cheque by inserting a sum not exceeding ten thousand rupees for the purpose of making certain payments. B fraudulently fills up the cheque by inserting the sum of twenty thousand rupees. B commits forgery. (e) A draws a bill of exchange on himself in the name of B without B's authority, intending to discount it as a genuine bill with a banker and intending to take up the bill on its maturity. Here, as A draws the bill with intent to deceive the banker by leading him to suppose that he had the security of B, and thereby to discount the bill, A is guilty of forgery. (f) Z's will contains these words-"I direct that all my remaining property be equally divided between A, B and C." A dishonestly scratches out B's name, intending that it may be believed that the whole was left to himself and C. A has committed forgery. (g) A endorses a Government promissory note and makes it payable to Z< for his order by writing on the bill the words "Pay to Z or his order" and signing the endorsement. B dishonestly erases the words "Pay to Z or his order", and thereby converts the special endorsement into a blank endorsement. B commits forgery. (h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his estate, executes a conveyance of the same estate to B, dated six months earlier than the date of the conveyance to Z, intending it to be believed that he had conveyed the estate to B before he conveyed it to Z. A has committed forgery. (i) Z dictates his will to A. A intentionally writes down a different legatee named by Z, and by representing to Z that he has prepared the will according to his instructions, induces Z to sign the will. A has committed forgery. (j) A writes a letter and signs it with B's name without B's authority, certifying that A is a man of good character and in distressed circumstances from unforeseen misfortune, intending by means of such letter to obtain alms from Z and other persons. Here, as A made a false document in order to induce Z to part with property, A has committed forgery. (k) A without B's authority writes a letter and signs it in B's name certifying to A's character, intending thereby to obtain employment under Z. A has committed forgery inasmuch as he intended to deceive Z by the forged certificate, and thereby to induce Z to enter into an express or implied contract for service.

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Explanation I. - A man's signature of his own name may amount to forgery. Illustrations (a) A signs his own name to a bill of exchange, intending that it may be believed that the bill was drawn by another person of the same name. A has committed forgery. (b) A writes the word "accepted" on a piece of paper and signs it with Z's name, in order that B may afterwards write on the paper a bill of exchange drawn by B upon Z, and negotiate the bills as though it had been accepted by Z. A is guilty of forgery; and if B, knowing the fact, draws the bill upon the paper pursuant to A's intention, B is also guilty of forgery. (c) A picks up a bill of exchange payable to the order of a different person of the same name. A endorses the bill in his own name, intending to cause it to be believed that it was endorsed by the person to whose order it was payable; here A has committed forgery. (d) A purchases an estate sold under execution of a decree against B. B, after the seizure of the estate, in collusion with Z, executes a lease of the estate to Z at a nominal rent and for a long period and dates the lease six months prior to the seizure, with intent to defraud A, and to cause it to be believed that the lease was granted before the seizure. B, though he executes the lease in his own name, commits forgery by antedating it. (e) A, a trader, in anticipation of insolvency, lodges effects with B for A's benefit, and with intent to defraud his creditors; and in order to give a colour to the transaction, writes a promissory note binding himself to pay to B a sum for value received, and antedates the note, intending that it may be believed to have been made before A was on the point of insolvency. A has committed forgery under the first head of the definition. Explanation 2.-The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. Illustration A draws a bill of exchange upon a fictitious person, and fraudulently accepts the bill in the name of such fictitious person with intent to negotiate it. A commits forgery.

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19. That seeing these Respondents using their good offices in influencing

officials of the Hon'ble High Court of Calcutta (as was self-evident from

the fact that no action or tardy action was being taken on his letter

dated 09-01-2015), the Petitioner No. 1 addressed a letter on 19-01-2015

to Honble the Chief Justice, urging her to issue suitable directions so that

the law may be enforced uniformly, but more so that the criminal

contempt taking place in CP No. 33 of 1988, as well as pleadings being

filed in numerous other proceedings, would be arrested. A copy of the

same is appended hereto, and is marked as Annexure 5.

20. That thereafter, these persons continued to use their pernicious influence

at all levels in the Hon'ble High Court to see to it that 4 applications

drafted and being filed by Petitioner No. 1 on behalf of Petitioner No. 2 in

the Hon'ble Calcutta High Court were not being accepted on one frivolous

pretext or another since Friday, 16-01-2015, thus, to ensure that they

could not be listed on the next available Senior Citizens day, which is 22-

01-2015.

21. That no doubt, part of the motivation for their obstructive tactics was

because 2 out of these 4 applications were extremely injurious to their

own position, one seeking initiation of criminal contempt proceedings (for

their reprehensible resort to approbate and reprobate on a point of law,

as counsels), and the 2nd seeking initiation of criminal contempt

proceedings against them, as well as debarring them from any right of

audience or practice at least in CP No. 33 of 1988, because of their

multiple infractions of the Original Side Rules. A copy of the former

application with its Judges Summons is appended hereto, and is colly.

49

marked as Annexure 6, and a copy of the latter application with its Judges

Summons is appended hereto and is colly. marked as Annexure 7. To the

former is appended a copy of Legal Notice issued by Petitioner No. 1 to

Respondent No. 4 and to its clients dated 11-01-2015, transmitted also by

email on 13-01-2015, which sets out the manner in which this law firm

has patently been acting in furtherance of a criminal purpose, and playing

a colossal fraud on the Courts, right up to the Hon'ble Supreme Court.

22. That aggrieved by the behind-the-scenes manipulations being resorted

to by people associated with Respondent No. 4 in trying to obstruct listing

of these 4 applications, the Petitioner No. 1 addressed another letter dated

20-01-2015 to Ld. Registrar (Original Side), putting all these

developments on record. A copy of this letter is appended hereto, and is

marked as Annexure 8.

23. That despite all these representations relating to the multiple infractions

of the law, Respondent No. 4-7 are continuing to practice (rather, are

being permitted to continue to practice) on the Original Side, even when

they patently have no right to do so.

24. That their insisting on doing so is also an interference in the due course of

judicial proceedings, and also, an interference in the administration of

Justice, which constitute criminal contempt under the Contempt of Courts

Act and Article 215 of the Constitution.

RATIONALE BEHIND THE NECESSITY OF INCLUSION OF THE NAMES

OF ALL THE PARTNERS IN THE NAME OF A LAW FIRM

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25. That it gets worse : Respondent No. 4 is violating the very rationale of

why, even as per international norms followed world-wide even today, the

name of a law firm must be that of its partner(s). The rationale is that the

firm must be associated indelibly in the perception of the public with the

actual advocate(s) behind the firms name. The petitioner appends as

Annexure 9 a very recent news article, in which there is a reference to

Khaitan, but without setting out which particular Khaitan firm : whether

it is Khaitan & Co, or whether it is Khaitan and Khaitan, or whether

whether it is O. P. Khaitan & Co. Even though Petitioner No. 1 is a lawyer,

even he cannot figure it out automatically.

26. That this incident, as an example of many other similar incidents, shows

how important it is to have the name of the firm associated with the

individual(s) behind it, as a deviation from this well-settled norm not only

misleads the public, but also, inter alia, enables one law firm to unduly

encash on the goodwill, reputation and frame of another, as well as vice

versa, whereby the disrepute brought upon one law firm may unfairly be

attached to another.

27. That the latter aspect of the matter (i.e of one bringing disrepute to

another) is borne out from another incident, which has now come to be

known as the Choppergate Scam. In that incident, there has been

reported the recent arrest of one Mr. Gautam Khaitan. A very large

number of people believe this gentleman to be associated with

Respondent No. 4, and it is unknown even to petitioner No. 1 (who is in

the same profession) as to whether the aforementioned individual is

51

associated with Respondent No. 4, or with some other law firm with the

name Khaitan in it.

28. That this is why, in the West, the name of the firm is usually the surname

of all the various partners, even if the name of the firm becomes long and

unwieldy. As an example, there is a law firm in the US which has the

following name, which has as many as 9 partners names in it : Ziffren,

Brittenham, Branca, Fischer, Gilbert-Lurie, Stiffelman, Cook, Johnson, Lande

& Wolf. (http://blogs.wsj.com/law/2007/01/03/the-longest-law-firm-

name-ever-part-ii/). Another example : Butlwer, Wooten, Cheeley and

Peak LLP. (Source : http://www.butlerwooten.com/Car-Accidents/).

Another example : Wahn, Mayer, Smith, Creber, Lyons, Torrance &

Stevenson. (Source : : http://www.slaw.ca/2010/06/13/law-firm-

names-the-long-and-the-short-of-it/.) Yet another example : Smith Lyons

Torrance Stevenson & Mayer.

29. That even the name of the law firm set out in the famous Marx Brothers

story, in which there are 5 members of a family called Hungadunga, in

which 4 members were practicing law together in a law firm : their law

firm is called Hungadunga, Hungadunga, Hungadunga, Hungadunga, and

McCormack.

30. That similarly, if a lawyer has the same surname as another well-known

lawyer, then the firm has to have his full name, and not just his surname.

For example, if there is an advocate by the name of, say, Ram Lal, so long

as there is no other lawyer by the name of Lal, merely putting Lal in

the name of the firm may perhaps suffice in terms of compliance with this

52

Rule. But if there is another Lal, then this Ram Lal would be required to

include his full name Ram Lalin the name of his firm, to distinguish it

from that of the other Lal.

31. That the relevance of the foregoing submission is that in the legal

profession, there are at least 20 individuals with the name of Khaitan

practicing the law.

32. That in light of this fact, the law requires that should any one or more of

them decide to partner with other persons to form a law firm, the name of

the law firm must carry the full name of that Khaitan individual(s) so as

to distinguish itself / himself from the other Khaitans who also are

active in the profession.

33. That the relevance of the foregoing argument also is that in 2008, the

partners of Respondent No. 4 (Khaitan & Company) were apparently

the following 14 individuals, if one goes by the names printed on their

letterhead, a copy of which is appended hereto and is marked as

Annexure 12 :

1. Pradip Kumar Khaitan

2. Ram Niranjan Jhunjhunwala

3. Purushottam Lal Agarwal

4. Ravi Kulkarni

5. Nand Gopal Khaitan

6. Gouri Shankar Asopa

7. Om Prakash Agarwal

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8. Padam Kumar Khaitan

9. Om Prakash Jhunjhunwala

10. Rajiv Khaitan

11. Arvind Kumar Khunkhunwala

12. Aniket Agarwal

13. Haigreve Khaitan

14. Rabindranath Jhunjhunwala

34. Whereas, of these 14 names, only 2 names stood registered with Ld.

Registrar (Original Side) in February 1977, on which date this same firm,

as per its application filed with Respondent No. 2, had only 8 partners.

35. That with the change of partners not having been informed to Respondent

No. 2, it is clear that this law firm is, itself, in very material breach of Rule

9 (d) of the Original Side Rules.

36. This being so, this firm has ceased to comply with the Rules framed by this

Hon'ble Court, thus, warranting action against it under Rule 16, including

debarring them from practice on the Original Side forthwith.

37. That action is warranted all the more, given that this firm has seen it fit to

interfere with the right of another advocate under the umbrella of these

very Rules, speciously arguing that Rule 2(i) prevailed over Section 30 of

the Advocates Act, 1961.

38. That the purpose of recounting the stand of the Respondents in CP No. 33

of 1988 is not so as to foolishly enable them to get a handle against the

Petitioner No. 1, by alleging spite and/or vendetta against him as the

54

prime motivation(s) for filing the present petition, but to submit that if

they are so conscious of the Rules, to the extent where they, as self-

anointed Guardian of those Rules, have attempted to unreasonably

interfere with the fundamental right of another advocate by citing those

Rules, then this constitutes their own admission that those Rules apply,

proprio vigore, against them also. In other words, before pointing their

own learned fingers at others, they would have done well to have

remembered the old adage, namely, that one must be careful before

pointing a finger at another, lest three of your own fingers point back at

you.

39. That Respondent No. 4, and Respondent No. 5 to 7 have forgotten that the

burden of lawful conduct is higher on Members of the Bar as compared to

ordinary citizens. Being one of the more prominent law firms in the

country, in which position they should be setting examples for others to

emulate, instead, it is wrecking the system from within.

40. That from a conversation amongst advocates over-heard by Petitioner No.

1 in the corridors of the the Hon'ble Calcutta High Court on 13-01-2015,

he has been given to understand, and which he verily believes, that even

the oaths sworn by their clients are false inasmuch as, invariably, the

execution is never at the Court House, even though the Oath

Commissioner has certified that it has been Sworn Before me in the

Court House. This can very easily be probed by extracting the CCTV

footage opposite to where the Oath Commissioner sits for those dates that

WP No. 69 of 2015 - Deepak Khosla Vs. Khaitan & Co - Debar From Practice

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