concession
srinivas
(Querist) 20 December 2010
This query is : Resolved
Can an lawyer give concession to opposition party with out the consent of his party which is against the act and shall provision in the act against the interest of his party?.
IN such an event can court remain silent when such concession given is against Shall Provision in the act?
Can any judge make a party suffer by delaying the case because the case is referred back to him to take a fresh look ( by writ Bench through Appeal), and he cannot do that as he has in the past accommodated a party violating a Shall provision?.
When a Judgement is not marked as publishable how to make an application to make such judgement to get Published?
s.subramanian
(Expert) 21 December 2010
A lawyer's concession on a point of law is binding on the party while such a concession on a point of fact will not bind the party. From your post,I am able to understand that the lawyer has made an erroneous concession on a point of law. It will not bind the party in any manner. The court ought not to have acted on such a concession. Any order or judgment based on such concession is equally wrong and unsustainable. You can ask for the transfer of the case to some other bench in view of this problem.
It is purely the discretion of the concerned judge to allow publication. If he does not wish ,it cannot be published at all.
Kirti Kar Tripathi
(Expert) 21 December 2010
what concession has given the lawyer, please clarify. in the absence of specific fact, it is not possible to answer.
srinivas
(Querist) 23 December 2010
Dear Shri Subramanian Sir,
Thank you for good clarification. I run a Small Scale Industry. I am sending you the copies of WA order and WP order for your views. So please advise me. I shall be able to send you some reasonable fees.
The Act referred is MSMED act 27 of 2006. The “Shall” provision referred is section 19 of the said act. Purported concession is also under the same Section.
An award passed in our favour by the arbitrator (Karnataka state Industrial Facilitation Council) set up under the said act. The award is challenged in Trail court. Trail court ruled in our favour stating that the merits of the case can be taken up only after depositing 75% as per section 19 of the MSMED act.
Aggrieved by the Trail court decision the opposition party filed writ Petition in High Court.
In High Court Judge ruled to deposit 75% Bank guarantee and conduct the trail with 2 Months from the date of the order being issued. There is no provision for Bank Guarantee in the said Act. Aggrieved by the situation I had asked my advocate to go to full bench and he has refused. Hence I changed my advocate.
The Party has deposited the Bank Guarantee and advanced the Original Arbitration suit in trail court. While trail is going in a very prolonged manner on my request my present advocate to filed Writ appeal.
During Writ appeal the opposition Advocate submitted that my previous advocate has given the concession at WP stage. The bench got confused and reverted the file back to the WP stage same Judge.
The WP judge in open court started passing scanty remarks on advocacy and throws the file every time and will tell to put up after three weeks. He says that my previous advocate has given concession. But in the order No such mention is available. My previous advocate also has not filed any affidavit to the purported concession granted.
Meanwhile we have filed an early hearing application. We have also filed for Impleading Ministry of MSME and Industries secretary Karnataka as parties. All applications have faced the same standard acid test.
I am sending you the copies of WA order and WP order for your views. So please advise me. I shall be able to send you some reasonable fees.
Thanks & Regards
Srinivas
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