048-NLR-NLR-V-77-In-re-A.-THIRUGNANASOTHY.pdf
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G. P A. SILVA, S.P.J.—In re Thirugnanasothy
1973 Present : G. P. A. Silva, S.P.J., Wijayatilake, J., and
Pathirana, J.
In re A. THIRUGNANASOTHY
£. C. 21—In the matter of a Rule under Section 17 of the Courts
Ordinance
Legal practitioners—Proctor—Power of Supreme Court to remove himfrom office—Scope of Courts Ordinance (Cap. 6), s. 17.
Where a Proctor is guilty of misappropriating money due to hisclient he may be removed from office under section 17 of the CourtsOrdinance. It is immaterial for this purpose that he has beenacquitted on an indictment containing a charge relating to thisidentical transaction, when the reasons for the acquittal, though,sound, are technical in nature.
Rule under Section 17 of the Courts Ordinance on a Proctorof the Supreme Court.
S. Sharvananda, for the respondent.
Ananda de Silva, Senior State Counsel, as Amicus Curiae.
Cur. adv. vult.
June 8, 1973. G. P. A. Silva, S.P.J.—
This matter of this Rule arose as a result of an affidavit affirmedto on 31st January 1966 by one Nadarajah Kumaraswamy tothe effect that he and his wife had requested the respondentThirugnanasothy, in his capacity as Proctor representing them,to file action for the recovery of a sum of Rs. 6,000 lent by themto one Swaminathan Subramaniam on a Mortgage Bond and thatthe respondent, having recovered the said amount without theirknowledge or consent, had failed to pay over to any of them anypart of the amount so recovered. On a direction by His Lordshipthe Chief Justice to hold a disciplinary inquiry, the Law Societyheld such inquiry and forwarded the proceedings to this Court.The respondent, although noticed by the Disciplinary Committeeof the Law Society to be present at this inquiry, forwarded amedical certificate expressing his inability to attend the Inquirywhich, however, having been posted on the previous day, reachedthe Law Society after the inquiry was concluded. It is also rele-vant to state here that the respondent was tried before theDistrict Court of Jaffna, on indictment, with having between the21st March, 1957 and 18th May, 1957 misappropriated the sum of
(jr. P. A. SILVA, S.P.J.—tn re t'hirugnanasothy
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Rs. 6,000 belonging to the affirmant Kumaraswamy, but wasacquitted. The District Court Judgment which has been madeavailable to us shows, however, that the acquittal was based ontwo grounds both of which were technical, namely, that therewas no proof that the money belonged to Kumaraswamy nor thatthe misappropriation took place between the dates as alleged inthe indictment.
At the inquiry before us which was entirely independent ofthe findings of the Disciplinary Committee of the Law Society orthe District Judge’s decision, evidence was placed by the SeniorState Counsel in support of the Rule and the respondent himselfgave evidence in his defence.
The evidence of Nadarajah Kumaraswamy, whom I shall here-after refer to as the Petitioner, was that somewhere in 1951 heentrusted to the respondent, a close relative, a sum of Rs. 6,000belonging to his wife for investment in a mortgage and that therespondent had accordingly lent this amount to one Subrama-riiam. The money had in fact been handed over to the respondentby one Dharmalingam, an uncle of the Petitioner, and he learntsomewhere in 1952 both from Dharmalingam and the respondentthat the investment had been made. Subsequently, the Petitionerhad received from the respondent by cheque a sum of Rs. 840 asinterest on this investment and, as the borrower had defaultedpayment, the Petitioner instructed the respondent to instituteaction for the recovery of the money. The Petitioner wasemployed in the Central Bank and his visits to Jaffna where therespondent practised were few and far between. On a subsequentoccasion when the Petitioner visited Jaffna, the respondentinformed him that he had filed action for the recovery of thismoney. Thereafter, every time he returned to Jaffna, when thePetitioner inquired from the respondent what the position wasin regard to the case the reply he received was that it waspending. He also wrote about 300 letters to the respondent, ashe said, but did not receive a single reply. He later contacted aclerk in the Land Registry from whom he heard that the casehad been settled. This information was received about 6 monthsbefore he reported the respondent. If this evidence is true it wasonly in 1965 that the Petitioner would have heard of thesettlement.
An examination of the case record P2 shows that action on theMortgage Bond in question was filed on 14.11.1956, and that ofconsent, judgment was entered for the plaintiff as prayed for on28.2.1957. A journal entry of 18.5.1957 shows that, as the claim
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a. P. A. SILVA, S.P.J.—In ra Thirugnanasathy
in the case had been paid and settled by the defendant, theproctor for the plaintiff moved that satisfaction of decree beentered and that decree was accordingly entered.
In the affidavit filed by the respondent he did not contest thisfact, tut admitted that he received from the defendent the princi-pal Rs. 6,000 and interest, after which satisfaction of decree wasentered. He averred, of course, that he paid back the entire sumso recovered to the Petitioner, and that he obtained a stampedreceipt from him which he handed to the defendant mortgagorSubramaniam. He also alleged that the complaint made by thePetitioner belatedly was false and malicious and was part of aconspiracy to injure him and damage his professional reputation.
Subramaniam, the defendant in that case testified to the effectthat he had raised another loan of Rs. 8,000 on the same propertyto redeem the Petitioner’s debt and that he was informed by hisProctor that the Petitioner’s debt had been settled and thatsatisfaction of decree had been entered. He completely deniedthat the respondent gave .him a receipt of any kind, but said thatbe had only informed him that he had settled the debt. There-after the first communication he had with regard to this loan wasa request made in 1964 for this money from the Petitioner and hesent a reply, the contents of which he did not remember. Hisattitude was that, as satisfaction of decree had been entered andas he had raised a further loan on this property and was furtherinformed by the Proctor that this debt had been settled, he wasnot interested in this request made in 1964.
Although the respondent reiterated in his evidence that he hadpaid the amount recovered to the Petitioner, he was contradictedon this point by the Petitioner. Subramaniam’s evidence thatno leceipt was handed to him by the respondent, which weaccept, supports the petitioner that he gave no receipt. Therespondent’s answer to the evidence of the Petitioner that he hadsent about 300 letters, was that the letters had been addressed tohis father-in-law’s place and, as he had fallen out with the fatherin-law and left the house, those letters had not reached him. Wefind it most difficult to accept this evidence. The respondent’sconduct with regard to the disciplinary inquiry to which he wassummoned in respect of such a grave complaint also intrigues us.He did not even take the trouble to send a telegram to the LawSociety on the day he sent the letter informing them of his allegedill health, but sent a letter by ordinary post from Jaffna whichhe must know would at the earliest reach the Law Society onthe day of the inquiry or thereafter, but certainly not before theinquiry.
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The Petitioner’s long delay in making his complaint to the LawSociety would ordinarily be a factor which would adverselyaffect his evidence. In this case, however, we feel satisfied thatthe proximity of the relationship between the two would havestood in the way of immediate recourse to the Law Society orthe Supreme Court involving serious consequences to the respon-dent. In fact that was the Petitioner’s evidence : — “I did notwant to put the man in trouble. I thought of getting the moneyby good means. ” Although the Petitioner stated in evidence thathe wrote about 300 letters before discovering that the case hadbeen settled, it is very likely that he was confused and that amajority of these letters were written after he discovered thatthe respondent had recovered the money. One knows fromexperience that this is typical of the conduct between a proctorwho is remiss or dishonest and a client. More so is it likely to bethe conduct when the two are closely connected. Furthermore,any sensible client who has to recover a comparatively large sumfrom a proctor knows that he has personally nothing to gain bypursuing a course which will spell the doom of the proctor andthat the more prudent course is to make every endeavour, despitedelay, to recover whatever is possible. It is only when everyuseful effort has failed that he would have recourse to a complaintto the appropriate authority.
In view of the serious consequences which a charge of thisnature against a proctor would involve, we thought it fit notmerely to rely on the affidavit evidence or the findings of theDisciplinary Committee of the Law Society, but to hold anindependent inquiry before this Court. On the evidence beforeus, we have no hesitation in finding the respondent guilty of thecharge of misappropriation of the sum of Rs. 6,000 and interestrecovered on behalf of his client, the Petitioner, which chargeformed the basis of this Rule. The respondent has by his conductclearly brought himself within the ambit of Section 17 of theCourts Ordinance which empowers this Court to deal with anadvocate or proctor found guilty of this type of misconduct. Itis immaterial for this purpose that the respondent has beenacquitted by the District Court on an indictment containing acharge relating to this identical transaction as the reasons for theacquittal, though sound, are technical in nature.
The only question that remains for this Court to consider there-fore is the punishment which the misconduct in question merits.As we are conscious of the consequences which an order in termsof Section 17 of the Courts Ordinance would involve for aprofessional man, we have given this matter our most anxiousconsideration, remembering at the same time that the public
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interests and the honour of the profession must remain in thefore-front of our decision. The question that the Court has to askitself is whether a person who has been guilty of misappropria-tion of his client’s money and has aggravated his offence by hisrefusal to make good the amount despite repeated requests, cansafely be entrusted at any time in the future with the interestsof unsuspecting clients who may have recourse to him. There canbe no two answers to this question. Hence there is only onecourse open to us, namely, to strike off the respondent from therolls. I
I accordingly order that the respondent’s name be removedfrom the roll of Proctors.
Wijayatjlake, J.—I agree.
Rule made absolute.
Pathirana, J.—I agree.