MIRAHUL ENTERPRISES Vs. VIJAY SIRIVASTAVA

JUDGEMENT

(1.) These four appeals have been preferred against the common judgment passed by learned Single judge in two separate suits. Two appeals are by the plaintiffs Smt. Vijaya Srivastava and Rear Admiral R.R. Sood (Suit No. 451/86 and Suit No. 450/86) and the other two appeals are by the defendants.

(2.) Facts giving rise to the filing of the suits may be given as are alleged in the suit filed by Mrs. Vijaya Sirivastava, in which the facts and circumstances, as alleged by her pertaining to her suit as also of the suit of Rear Admiral R.R. Sood are mentioned. Learned Single Judge described the plaintiffs as "V" (Mrs. Vijaya Sirivastava) and "S" (Rear Admiral R.R. Sood). At this stage, it may be mentioned that Brig. K.K. Sirivastava (Retd.), the husband of Mrs. Vijaya Sirivastava has signed the plaint in both the suits, as holder of the General Power of Attorney of his wife Smt. Vijaya Sirivastava and as Special power of Attorney of Rear Admiral R.R. Sood. He alleged in the plaint that Mirahul Enterprises, a partnership firm with Shri. S.B. Kishore, defendant No. 2 as the Managing Partner and defendants 3 to 5, the other partners were engaged in the business of promoters and builders of multi-storeyed residential flats in the name and style of Mirahul Enterprises. In the course of the business, the defendants promoted the construction of multi storeyed residential flats. The plaintiff realising a need for suitable accommodation approached the defendants in June/July, 1982 and expressed desire to have a flat. Defendants apprised him that the plaintiff would be benefitted by making payments of advance money for booking a flat and formal agreement to sell would be executed later on. Relying on such representation, on 16.7.1982 Rs. 10,000/- was advanced and flat No. S-1 was booked in the said project. From 16.7.1982 till 9.10.1983, Rs. 3,15,000/- had been paid by cheques/cash against receipts except for one receipt of Rs. 5,000/-, which could not be traced. Agreement to sell was to be executed. In the meanwhile desire was also expressed to have another flat in the name of Rear Admiral Sood. Later on a letter was sent on 7.1.1983 by the defendants to the plaintiff confirming that residential flat measuring covered area of 1869 sq. ft. in flat Nos. S-2 and S-4 had been booked as per the drawings attached. Several discussions and negotiations took place. On 24.10.1983 it was-.agreed that a sum of Rs. 40,000/- would be paid by Mr. Sood to the defendants and out of Rs. 3,15,000/- already paid by the plaintiff, a sum of Rs.1,40,000/- would be transferred and stand adjusted as advance money received on account of Rear Admiral R.R. Sood. This arrangement was evidenced by letter dated 25.10.1983. Accordingly, on 24.10.1983 Rear Admiral Sood paid a sum of Rs. 40,000/- in cash and Rs. 1,40,000/- was adjusted from out of the advance paid by the plaintiff.

(3.) The plaintiff further alleged that on 2.11.1983 defendant No. 2 brought two agreements prepared by him, one was to be executed by the plaintiff and the other by Rear Admiral'Sood. While the plaintiff and Rear Admiral Sood had signed the agreements, it was noticed that the defendant had illegally, dis-honestly and without the consent of the plaintiff and Rear Admiral Sood included certain-terms for payment of some additional amount, .other than the agreed amount. In the case of the plaintiff such illegal terms were mentioned in the last page of the agreement being page of the agreement being page No. 5 and in the case of Rear Admiral Sood such illegal terms appeared in the last two pages namely pages 4 and 5 of the agreement. While the plaintiff and Rear Admiral R. S. Sood protested to defendant No.2, some corrections and .changes were attempted to be carried out. Defendant No. 2 got returned to him both the aforesaid two documents so that the two agreements could be prepared, as earlier agreed, without including the other illegal terms, nor agreed to either by the plaintiff or Rear Admiral R.R. Sood. Thus on 2.11.1983 itself defendant No. 2 got two agreements prepared afresh incorporating the agreed terms of the payments between the parties. Two agreements were thus duly executed by the plaintiff as well as by the said Rear Admiral R. R. Sood at Delhi on the aforesaid date, the original of which were delivered by defendant No. 2 to Admiral R. R. Sood on 2.11.1983 and whereas the original agreement as entered into with the plaintiff was delivered to the plaintiff only on 5.11.1983.