Goa Antibiotics & Pharmaceuticals Ltd v. R.K. Chawla & Anr.

Case Details & Bench

Court: High Court
Hon'ble Judges: Markandey Katju
Gyan Sudha Misra
Judgment Date: 2011-07-04
Court Decision / Holding: The Court did not exercise its discretion under Section 32 to permit the power of attorney holder to appear on behalf of the petitioner. It, however, granted four weeks’ time to engage a lawyer to represent the petitioner and adjourned the matter. It clarified the distinction between the right to appear (restricted to enrolled advocates) and the court’s discretionary power under Section 32 (to permit non-advocates in a particular case).
Final Disposition: Matter adjourned to enable the petitioner to engage a lawyer to appear and argue on its behalf.

Parties to the Case

Appellants / Petitioners

Goa Antibiotics & Pharmaceuticals Ltd

Respondents

R.K. Chawla
Anr.

Case Synopsis & Summary

This is a Criminal Miscellaneous Petition (Criminal M.P. No. 10490 of 2011) decided by a Division Bench of the Supreme Court on July 4, 2011. Goa Antibiotics & Pharmaceuticals Ltd sought to argue its case before the court through a Power of Attorney holder, Vishnu Kerikar, who was the Deputy Manager (Finance & MS). The core legal issue concerns representation of a corporate entity in court under the Advocates Act, 1961. Section 33 provides that no person shall practise in court unless enrolled as an advocate, establishing that a non-enrolled person cannot act as counsel. Section 29 likewise contemplates advocacy rights for enrolled persons. Section 32 vests discretionary power in the court to permit any person who is not enrolled as an advocate to appear and argue a particular case, a recognition that representation by non-lawyers is exceptional and conditional. The Court emphasized the distinction between the right to appear on behalf of an entity (reserved for enrolled advocates) and the court’s discretionary authority under Section 32 to permit a non-advocate to appear in a specific matter. In the present case, the Court did not exercise its discretion under Section 32 to permit the power of attorney holder to argue but granted four weeks for the petitioner to engage a lawyer. It also clarified that for artificial entities like companies, directors, trustees, or office bearers do not automatically have a right to appear on behalf of the entity, unless the court permits. The matter was adjourned to allow preparation with counsel.

Provisions of Law Cited

Section 29 of the Advocates Act, 1961Section 32 of the Advocates Act, 1961Section 33 of the Advocates Act, 1961

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contended that representation by their power of attorney holder should be permissible, or in the alternative that the court’s discretionary power under Section 32 could allow a non-enrolled person to argue the case on behalf of the corporate entity. They relied on the general framework of the Advocates Act allowing representation by those authorized to act for a party and sought court indulgence to permit non-enrolled representation.

Contentions of Respondents

The respondents emphasized that the Advocates Act restricts court practice to enrolled advocates and that Section 32’s discretionary provision cannot override the express requirement of enrollment for advocacy. They argued that a corporate entity must be represented by an enrolled advocate unless the court grants explicit permission under Section 32.

Extracted Judgment Text

Exact text extracted from official judgment records.

(2011] 7 S.C.R. 846 A GOA ANTIBIOTICS & PHARMACEUTICALS LTD. _v._ B R.K. CHAWLA&'ANOTHER (Criminal Miscellaneous Petition No. 10490 of 2011) JULY 04, 2011 **[MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.]** _Advocates Act, 1961:_ c _ss. 29, 33_ - _Right to practice in courts_ - _Held:_ A _person enrolled as an Advocate only can practice in courts_ - _Natural person .can appear in person and argue his own case personally but he cannot give a power of attorney to anyone other than a person enrolled as an advocate to appear on his_ 0 _[behalf ][-s. ][32, ][however, vests discretion ][in ][the ][court to permit ] any person who is not enrolled as an advocate to appear before the court and argue_ a _particular case_ - _In the instant case, an application for permission was filed by the Deputy Manager, power of attorney holder to argue the case_ - _personally on behalf of the petitioner-company Supreme_ E _Court refused to exercise discretion under s.32 and rejected_ - _the said application Petitioner-company granted four weeks time to engage_ a _lawyer to appear and argue on its behalf_ _s. 32_ - _Right to appear/argue on behalf of entity_ - _Held:_ F _As regards the artificial persons like a company registered under the Companies Act or_ a _registered co-operative society or_ a _trust, neither the Director of the company nor member of the Managing Committee or officer bearer of the registered society or_ a _trustee_ has a _right to appear and argue on behalf_ G _of that entity, since that entity is distinct from_ its _shareholders or office bearers or Directors_ - _However, court has discretion uls. 32 to permit such person to appear on behalf of that entity._ 846 H GOA ANTIBIOTICS & PHARMACEUTICALS LTD. _v._ 847 R.K. CHAWLA & ANR. _ss. 29 and 33_ - _Right of an enrolled lawyer to appear on_ A _behalf of someone and discretion vested in the court to_ - _permit a non-lawyer to appear before it Distinction between._ > _Power of attorney: Right of power of attorney holder to appear or argue_ - _Held: Power of attorney holder cannot, unless he is an enrolled lawyer, appear in court on behalf of_ B _anyone, unless permitted by the court uls. 32 of Advocates Act, though of course he may sign sale deeds, agreements etc. and do other acts on behalf of someone else, unless prohibited by Jaw-"' Advocates Act, 1961_ - _ss.29, 32, 33._ · c CRIMINAL APPELLATE JURISDICTION : Crl. M.P. No. 10490 of 2011. · **.** From the ~udgment & Order, dated 21.4.2009 of the High Court Of Bombay & Goa at Panaji in Criminal Revision Application No. 60 of 200B. · > · 0 ~ I . WITH Crl. M.P. No. 10490 of 2011. ## Petitioner-I n-Persoh. The following Order of the Court was delivered ## **ORDER** Mr:Vishnu Kerikar, Deputy Manager, Finance & MS claims to be the power of attorney holder of the petitioner~Goa . Antibiotics &Pharmaceuticals Limited in this case. He wishes to argue the case. personally on behalf of the petitioner. F ' ' ' Section· 33 of the Advocates Act, 1961 (hereinafter ···referred .;;, lo as the 'Act') states . . as· follows: ' ' · "33. Advocates. alohe entitled to practise - Except as · · othetwise provided In this Act or in any other law for the · time being in force,. no person shall, on or after the H 848 SUPREME COURT REPORTS [2011] 7 S.C.R. A appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act." A perusal of the above provision shows that only a person B who is enrolled as an advocate can practice in a court, except where otherwise provided by law. This is also evident from Section 29 of the Act. > A natural person can, of course, appear in person and o argue his own case personally but he cannot give a power of C attorney to anyone other than a person who is enrolled as an advocate to appear on his behalf. To hold otherwise would be to defeat the provisions of the Advocates Act. > Section 32 of the Act, however, vests discretion in the court, authority or person to permit any person who is not D enrolled as an advocate to appear before the court and argue · > a particular case. Section 32 of the Act is not the right of a person (other than an enrolled advocate) to appear and argue before the court but it is the discretion conferred by the Act on the court to permit any one to appear in a particular case even E though he is not enrolled as an advocate. In this case, an application for permission has been filed by Mr. Vishnu Kerikar who wishes to appear and argue on behalf of the petitioner-Goa Antibiotics & Pharmaceuticals Ltd. F which is a company registered under the Indian Companies Act. We are not fnclined to exercise our discretion under Section 32 of the Act and hence we reject the said application. However, we grant the petitioner four weeks' time to G engage a lawyer to appear and argue on behalf of the petitionercompany. We make it clear that as regards artificial persons like a company registered under the Indian Companies Act, or a o registered co-operative society, or a trust, neither the Director H of the Company nor member of the Managing Committee or GOA ANTIBIOTICS & PHARMACEUTICALS LTD. _v._ 849 R.K. CHAWLA & ANR. office bearer of the registered society or a trustee has a right . to appear and argue on behalf of that entity, since that entity is distinct from its shareholders or office bearers or directors. However, it is the discretion of the court under Section 32 of the Act to permit such person to appear on behalf of that entity. A There is a distinction between the right to appear on behalf[B ] of someone, which is only given to enrolled lawyers, and the discretion in the Court to permit a non-lawyer to appear before it. Under Sections 29 and 33 of the Act only those persons have a right to appear and argue before the court who are enrolled as an advocate while under Section 32 of the Act, a power is C vested in the court to permit, in a particular case, a person other than an advocate to. appear before it and argue the case. A power of attorney holder cannot, unless he is an enrolled lawyer, appear in Court on behalf of anyone, unless permitted by the Court. under Section 32 of the Act, though of course he may D sign sale deeds, agreements etc. and do other acts ori behalf ·cif someone else, unless prohibited by law. Accordingly, the matter is adjourned by four weeks to enable the petitioner to engage a lawyer to appear and argue . on its behalf. E D.G. . Matter adjourned.