Sarojini Devi vs. Madhu Jain

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Present: Mr. D.K. Rustogi with Mr. Achin Aren, Advs. for the plaintiff along with plaintiff in-person Mr. A.J. Bhambhani with Ms. Divya, Adv. for the defendant no. 1

+I.A. Nos. 2677/2004 and 6964/2005 & CS (OS) No. 765/2003

Learned counsel for the plaintiff, on instructions from the plaintiff who is present in court today, submits that in the light of the statement made by Shri R.S. Aggarwal, Senior Manager, Canara Bank, his client does not wish to proceed with the suit and seeks leave to withdraw the suit.

This prayer is vehemently opposed by learned counsel for the defendant who submits that the suit was only frivolous and unnecessary and ought not to have been filed in the light of judgment and decree dated 28th September, 1998 passed by this court. It has been pointed out that in the judgment dated 3rd September, 2001 passed by the Division Bench of this court in R.F.A. No.

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It is submitted that the defendant no. I has incurred heavy costs in contesting this suit which has remained pending for all these years.

In the light of the above, the plaintiff is permitted to withdraw the suit subject to payment of the costs of the defendant which are quantified as Rs. 15,000/-. Out of this amount, sum of Rs. 10,000/- shall be paid to the defendant no. 1 and the balance amount of Rs. 5,000/- shall be deposited with National Legal Aid Fund (NALSA).

It is pointed out that pursuant to the judgment and decree dated 28th September, 1998, the defendant no. 1 has deposited an amount of Rs. 1,65,000/vide a bank draft which is lying in a sealed cover with the registry. The registry is directed to open the sealed cover of the draft and release the original draft to the defendant no. 1 through learned counsel representing it in this court who shall be entitled to get the same cancelled from his banker and receive the amount. The registry shall retain a photocopy of the draft which is so returned to the defendant no. 1 shall adjust the amount of counsel's fees of Rs. 11,000/- and costs of Rs. 11,008.30/- which were awarded by the order dated 3^rd September,

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2001 passed by the Division Bench of this court in R.F.A. No. 13/1999 and the amount of Rs. 10,000/- awarded today out of Rs. 1,65,000/-. The defendant no. 1 shall also deposit the amount of Rs. 5,000/- with the National Legal Aid Fund (NALSA) therefrom and submit the proof of payment in this court. The balance amount of Rs. 1,27,991.70/- shall be paid to the defendant no. 1 through counsel. Proof of such payment shall also be filed within six weeks.

The suit and all pending applications mentioned above are disposed of in $s^{s}$ the above terms.

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October 05, 2006 SD

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