Pleaders fees should be commensurate with the volume and quantity of expertise.

ORDER: The revision petition is filed challenging the fair and decretal orders passed by the Subordinate Judge, Virudhunagar in I.A.No.305 of 1997 in O.S.No.196 of 1996 dated 5.8.1997.

2. The revision petitioner is the nationalised bank and as plaintiff, the bank filed the said suit on the file of the Subordinate Judge, Virudhunagar for recovery of the mortgage money due from the respondents/defendants on the basis of the registered mortgage deed executed by the defendants in favour of the plaintiff for a sum of Rs.7,50,600.85 with interest and costs. A preliminary decree was passed on 13.11.1996 wherein the Pleader’s fees had been calculated as per Rule 3(2)(a) of the Legal Practitioners Fees Rules, 1973 and a sum of Rs.10,056 towards senior advocate’s fees and Rs.3,352 as Junior advocate’s fees had been taxed as per the cost memo filed by the plaintiff, even though a sum of Rs.16,656 and Rs.5,559 had been claimed by the plaintiff towards the fees payable by the defendants to the senior advocate and the junior advocate respectively. Hence the revision petitioner was constrained to file the said application to award the schedule fees in accordance with the provision under Rule 3(2)(b) of the said Rules. The learned Subordinate Judge having analysed the facts and the provisions of law dismissed the application. Hence, the revision.

3. The learned counsel for the petitioner has argued at the outset that the trial Court was not correct in holding that the legal practitioner’s fee in this case has be calculated under Rule 3(2)(a) which is applicable only with regard to suits for money based on negotiable instrument and loan. Moreover, he has contended that the proper provision is Rule 3(2)(b) which is applicable to the suits based on mortgage deed. He has also pointed out in this connection that the procedure followed by the Subordinate Courts in this regard is not uniform and therefore it has become necessary to decide whether the advocate fees taxed by the Court below is in accordance with the said Rules.

4. It is essential to extract Rules 3(2)(a) and (b) of the Legal Practitioners’ Fees Rules, 1973 to appreciate the question involved in this case as under:

“In Courts Subordinate to the High Court, in suits for money, effects or other personal property or for land or other immovable property of any description, fees to legal practitioners shall be payable on the following scale:

(1) .. ..

(2) Original Suits:

(a) for money based on negotiable instruments and loans:

(b) Other original Suits not falling under Sub-clause (a) of Clause (2).

5. In this context, it is relevant to mention that the suit filed by the revision petitioner was not based on a negotiable instrument and therefore, it is essential to find out whether the suit was based on any loan transaction as per the said Rules. In effect, the question for consideration is whether the principal and interest secured under mortgage is a loan within the meaning of the said term.

6. The dictionary meaning of the term ‘loan’ as given in” The Concise Oxford Dictionary (10th Edition) is as follows:

“A thing that is borrowed, especially a sum of money that is expected to be paid back with interest; the action of lending.”

Similarly, P.Ramanatha Aiyer’s “The Law Lexicon” (2nd Edition 1997) defines “loan” as follows:

“Loan means a loan whether of money or in kind, and included any transaction which is in the opinion of the Court, in substance a loan. Act X of 1918 (Usurious Loans), Sec.2(2)”

Again if one has to find out the nature of money being the subject matter of loan, the Law Lexicon provides the definition of "loan of money" as follows:

"By a loan of money, is meant the delivery by one party... and the receipt by the other party... of a given sum of money, upon an agreement, express or implied, to repay the sum loaned with or without interest."

7. In this context, it is necessary to refer to the case law on this point with reference to Sec.2(2) of the Usurious Loans Act, 1918 so as to find out

Click Here to Read the rest of this document