1989 PLP 4439 (MLD)

Damadardass Agarawal v. R.Badrilal AIR 1987 Andh. Pra.254; Dharmadas v. Kachudas AIR 1933 Born. and Sundaramurthy v. Muthjah Mudaliar AIR 1945 Mad.190 ref. R.F.Virjee for Plaintiff. Muhammad Naeem for Defendants. Date of hearing: 16th February, 1989. This is an application under Order 7 Rule 11 read with Section 151 CPC filed by the defendants praying that the suit may be dismissed as it has been settled outside the Court. The true copy of deed of settlement entered into between the parties is also filed. It is also prayed in the application that bank guarantee in the sum of rupees One Million furnished by defendant No.1 in Admiralty Suit No.24/1981 be discharged. It may be pointed out that the provisions of Order 7 Rule 11 CPC would not apply to this application but those of Order 23 Rule 3 CPC would be applicable to it and the Court on being satisfied about it can order thereunder the disposal of the suit in accordance with a lawful agreement which is entered into between the parties. Mr. R.F. Virjee Advocate appearing for the plaintiff has not denied the execution of the deed oft settlement. He has admitted that not only such a settlement deed has been entered into between the parties, but he also admits that his clients have directed him to withdraw the suit but he submits that by doing so his clients are going to deprive him of the balance of his fees which comes to Rs.40,000, although he has worked assiduously and labouriously in this case and is entitled to much more. Mr. R. F. Virjee has relied upon a recent Division Bench case of Indian jurisdiction Damadardass Agarawal v. R.Badrilal reported in AIR 1987 Andhra Pradesh page 254/265 which is an authority for the proposition that power of the Court to order the payment of the fees to the Advocate in the absence of allegation of misconduct or any dispute about fees payable is accepted by all the High Courts except a solitary view taken in Dharmadas v. Kachudas reported in AIR 1933 Born. The view taken in that ruling was not approved even in the above ruling. Reliance was placed in the D.B. decision on the case of Sundaramurthy v Muthjah Mudaliar AIR 1945 Mad.190. Under these circumstances whereas I allow CMA No.1202/89 on being satisfied that the suit has been wholly decided by a lawful agreement to wit settlement deed dated 26-10-1988, the true copy of which has been annexed I alongwith this application and order that the said compromise be recorded and the suit be disposed of in accordance therewith. So far as the fees of Mr.R.F. Virjee are concerned I order that M/s. Hohn Tay Sayed & Partners 11-36 South Bridge Centre, 95, South Bridge Road, Singapore 0105 shall pay the said amount or its equivalent in foreign currency to Mr. R.F. Virjee before they release the same to the plaintiff. The amount, if it is paid in foreign currency, shall have to be remitted to Mr. R.F. Virjee in accordance with Foreign Exchange Regulation Act, 1947. The order dated 11-10-1982 whereby a security furnished by Bank of America on behalf of defendant No.l in Admiralty Suit No.24/1981 was ordered not to be discharged or cancelled till disposal of the suit is vacated and the Nazir is directed to discharge the guarantee forthwith. Mr. Mohammad Naeem states that he would extend his co-operation in the payment of the fees to Mr. R.F. Virjee. MYH/T-57/K Petition allowed.