An advocate does not have a lien on the litigation files kept with him, and the refusal to return the files to the client when demanded amounts to misconduct under S.35 of the Advocates Act.

1. The main issue posed in this appeal has sequential importance for members of the legal profession. The issue is this: has the advocate a lien for his fees on the litigation papers entrusted to him by his client? In this case the Bar Council of India, without deciding the above crucial issue, has chosen to impose punishment on a delinquent advocate debarring him from practicing for a period of 18 months and a fine of Rs. 1000/-. The advocate concerned was further directed to return all the case bundles which he got from his client - respondent - without any delay. This appeal is filed by the said advocate under S.38 of the Advocates Act, 1961.

2. As the question involved in his appeal has topical importance for the legal profession we heard learned Counsel at length. To appreciate the contentions we would present the factual backdrop as under:

Appellant, now a septuagenarian, has been practicing as an advocate mostly in the courts at Bhopal, after enrolling himself as a legal practitioner with the State Bar Council of Madhya Pradesh. According to him, he was appointed as legal advisor to the Madhya Pradesh State Co-operative Bank Ltd. ('Bank' for short) in 1990 and the Bank continued to retain him in that capacity during the succeeding years. He was also engaged by the said Bank to conduct cases in which the Bank was a party. However, the said retainership did not last long. On 17.7.1993 the Bank terminated the retainership of the appellant and requested him to return all the case files relating to the Bank. Instead of returning the files the appellant forwarded a consolidated bill to the Bank showing an amount of Rs. 97,100/- as the balance payable by the Bank towards the legal remuneration to which he is entitled. He informed the Bank that the files would be returned only after settling his dues.

3. Correspondence went on between the appellant and the Bank regarding the amount, if any, payable to the appellant as the balance due to him. Respondent Bank disclaimed any liability outstanding from them to the appellant. The dispute remained unresolved and the case bundles never passed from appellant's hands. As the cases were pending the Bank was anxious to have the files for continuing the proceedings before the Courts/Tribunals concerned. At the same time the Bank was not disposed to capitulate the terms dictated by the appellant which they regarded as grossly unreasonable. A complaint was hence filed by the Managing Director of the Bank, before the State Bar Council (Madhya Pradesh) on 3.2.1994. It was alleged in the complaint that appellant is guilty of professional misconduct by not returning the files to his client.

4. In the reply which the appellant submitted before the Bar Council he admitted that the files were not returned but claimed that he has a right to retain such files by exercising his right of lien and offered to return the files as soon as payment is made to him.

5. The complaint was then forwarded to the Disciplinary Committee of the District Bar Council. The State Bar Council failed to dispose of the complaint even after the expiry of one year. So under S.36B of the Advocates Act, the proceedings stood transferred to the Bar Council of India. After holding inquiry the Disciplinary Committee of the Bar Council of India reached the conclusion that appellant is guilty of professional misconduct. The Disciplinary Committee has stated the following in the impugned order:

"On the basis of the complaint as well as the documents available on record we are of the opinion that the respondent is guilty of professional misconduct and thereby he is liable for punishment. The complainant is a public institution. It was the duty of the respondent to return the briefs to the Bank and also to appear before the Committee to revert his allegations made in application dated 8.11.95. No such attempt was made by him."

6. In this appeal learned Counsel for the appellant contended that the failure of the Bar Council of Indi