RAJA KAMLA RANJAN ROY Vs. BEPIN BEHARY SADHKHAN

JUDGEMENT

(1.) This application for review of taxation raises a question of principle which appears to be of some interest and importance to the profession and the litigants. The suit out of which this application arises was a mortgage suit. After some proceedings the suit terminated and the defendant was directed to pay the costs of the suit to the plaintiff as between attorney and client. There were certain proceedings in the suit the costs of which, however, were not directed to be paid by the defendant. As the defendant desired to settle and pay costs payable by him without taxation the plaintiff's attorneys Messrs. Kar, Mehta & Co., made out a complete bill of costs including (a) items of charges payable by the defendant as between attorney and client, (b) items of charges payable by the plaintiff as between attorney and client (pure) in respect of the very proceedings for which the defendant had been ordered to pay ordinary attorney and client costs and (c) items. of charges in respect of proceedings the costs of which were not ordered against the defendant. The total bill amounted to Rs. 6427 and. was delivered to the defendant. The defendant objected to the items falling under (b) & (c). Those items amounted to Rs. 856. The balance of ES. 5571 was settled as between the plaintiff's attorneys and the defendant at a round sum of Rs. 5000 and was paid by the defendant to the plaintiff's attorneys, the latter giving up Rs. 571. It is said that this settlement was behind the back of the plaintiff. The attorneys explain and I see no reason to doubt the bona fides of the attorneys--that the plaintiff has not been helpful but has been rather obstructive towards the attorneys. I need say nothing more about it.

(2.) The attorneys then claimed from their Own client the plaintiff, the sum of Rs. 856 for which the defendant was not liable, and which was made up of the items coming within the heads (b) & (c) mentioned above. The plaintiff not having paid the amount the attorneys lodged their bill of costs No. 626 of 1942 for taxation under the warrant of attorney. In this bill of costs, the items which came under the head (a) i.e. those which were payable by the defendant under the decrees and orders in the suit were not included. It set out only the items which came under the head (b) i.e. pure attorney and client portion of costs of the very proceedings the ordinary attorney and client portion whereof was directed to be paid by the defendant and also the items which fell under head (c) i. e. costs of proceedings which were not directed to be paid by the defendant at all. In taxing the bill the Assistant Taxing Officer dealt with the items of charges under the. heads (b) and (e) on different footing. Generally and broadly speaking, he disallowed the items falling under (b) i. e. pure attorney and client portion with the remark "Rest non-taxable being piecemeal costs of a proceeding which have been realised from defendant." As regards items under (c) he taxed them in the usual way, allowing some, disallowing some and reducing the others. The attorneys carried in the bill before the Taxing Officer and took exception to the decision of the Assistant Taxing Officer in respect of 76 items. No exception was taken by the plaintiff to the taxation by the Assistant Taxing Officer. The learned Taxing Officer disallowed items 1 and 8 to 11 of the exceptions and allowed items 2 to 7, 12 to 13A and items 14 to 76. With regard to items 14 to 76 the learned Taxing Officer stated his reasons as follows: I think that there has been misapprehension. The mortgagor has not to pay the mortgagee's costs of this order and therefore these costs must be taxed as between attorney and client. At the end of the minutes he recorded as follows: I am satisfied that these costs are taxable and further that Mr. Ghose has been very reasonable in his charges and avoided unnecessary work and expense to client. No order as to costs as costs not applied for. The matter has been brought before me under Rule 72 of chap. 36 of the Rules of this Court. Mr. A. C. Mitra appearing for the plaintiff made it clear that no aspersion was sought to be made against the attorneys, and that no objection was taken to the decision of the Taxing Officer as regards the items of charges falling under (c), i. e., costs of proceedings for which the defendant was not at all liable under the decrees or orders in the suit. He objected only to those items of charges that came under head (b), i.e., which related to. proceedings for which the defendant was liable under the decrees and orders made in the suit. The ground on which this objection is founded is that the bill of costs in so far as it related to (b), i.e., the pure attorney and client portion of costs of proceedings the ordinary attorney and client costs of which were, directed to be paid by the defendant was insufficient and improper in that it did not include the items of charges payable by the defendant. Mr. Mitter contends that without those last mentioned items the bill is not complete and cannot be taxed, for the items sought to be charged as between attorney and client (pure) cannot be judged unless the Taxing Officer knows what has been charged against, the defendant. Further Mr. Mitter contends that the client is responsible to the attorneys for the whole costs, If the attorneys have realised anything from the defendant they have done so as agents of the client. The attorney must give a complete bill to client and therein give credit for whatever he has received from the client Or realised from the other side. It is only when such a bill is delivered that the client can consider whether the extra charges are proper charges and whether client would pay the same amicably or insist on taxation of the bill. I think Mr. Mitter is right in this contention.

(3.) In Drew V/s. Clifford (1825) 2 Car. & P. 69 the attorneys sued the client for payment of costs. A bill signed by the attorneys had been duly delivered. It was for business done (1) in the Insolvent Debtors Court (2) on a writ of error and (3) in an action by the client against a third party in which the client recovered judgment with costs against the third party. Those costs in the action had been taxed as between party and party at ?51 13s. but the same could not be realised from that third party. In the above mentioned bill this sum was charged against the client as a lump sum. The client in this "suit admitted liability for costs under heads (1) and (2) mentioned above but objected to head (8) on the ground that the items were not set out separately. The taxation between party and party by the Master was proved yet Abbott C. J. disallowed the claim for ?51 13s. and stated as follows: I shall hold that the plaintiffs cannot recover this sum of ?51 13s. A bill must be delivered with items, if for no other purpose, at least to shew that the party is not charged for the same thing twice over. I think this bill charging a sum in the lump is not sufficient, but as to the other business done the plaintiffs are entitled to recover for it.