AHMEDALLY G. KATHAWALA Vs. JHAVERBAI H. DAULAT

JUDGEMENT

(1.) SUIT No. 594 of 1981 was filed originally by appellants Nos. 1 to 8 (hereinafter referred to as plaintiffs Nos. 1 to 8) against respondent Nos. 1 and 2 (hereinafter referred to as defendants Nos. 1 and 2) for specific performance of an agreement of sale dated November 9, 1973 as varied. Respondent No. 3 (hereinafter referred to as defendant No. 3) has been joined as a party defendant because he claims an interest in the suit land as hereinafter stated. The 9th appellant (hereinafter referred to as the plaintiff No. 9) is a partnership firm registered on September 16, 1982 consisting of plaintiffs Nos. 1 to 8 as partners. Plaintiff No. 9 has been joined as a party plaintiff pursuant to an application for amendment in the suit which was granted on October 20, 1982.

(2.) THE suit pertains to plot of land at Ghatkopar admeasuring about 48.282 sq. metres. In or about 1964 it seems that Mrs. Kathawala and Mrs. Pittalwaia had agreed to purchase the said plot and had paid to defendants Nos. 1 and 2, who are the owners of the suit plot, a sum of Rs. 4 lacs in part payment of the consideration. On or about November 9, 1973 the said agreement between defendants Nos. 1 and 2 and Mrs. Kathawala and Mrs. Pittalwaia was terminated by mutual consent and the sum of Rs. 4 lacs was thereafter refunded to the two ladies by defendants Nos. 1 and 2. On the same day i.e. November 9, 1973 an agreement of sale of the said plot was entered into between defendants Nos. 1 and 2 as vendors and plaintiffs Nos. 1 to 8 as purchasers of the said plot of land on the terms and conditions which are set out in this agreement. In the recital to this agreement it is stated that plaintiffs Nos. 1 to 8 carry on business under the firm name and style of M/s K and N Enterprises at Lily Court, Opp. Ritz Hotel, Churchgate. The agreement, however, is signed by each of the plaintiffs Nos. 1 to 8 individually.

(3.) PURSUANT to this agreement, defendants Nos. 1 and 2 executed a power of attorney dated March 4, 1974 in favour of plaintiffs Nos. 1 and 6. It is the case of the plaintiffs that the power of attorney was executed in favour of these two persons because plaintiff No. 1 would represent the Kathawalla Group consisting of plaintiffs Nos. 1 to 5 while plaintiff No. 6 was to represent the Nagree group consisting of plaintiffs Nos. 6 to 8. The plaintiffs Nos. 1 to 8 were put in possession of the said land. Plaintiffs Nos. 1 to 8 entered into an agreement dated April 25, 1974 with one Jaipal Singh to level the said plot of land as set out in this agreement as per details and general specifications provided by the architects who were engaged by plaintiffs Nos. 1 to 8. It seems that there were a number of squatters on this plot of land. Plaintiffs Nos. 1 to 8 also entered into agreements for vacating the said land with squatters which agreements have been entered into in August 1974. On April 8, 1975 plaintiffs Nos. 1 to 8 obtained from the Municipal Corporation an approval of their building plans and 'Intimation of Disapproval' (IOD). They, however, obtained Commencement Certificate from the Municipal Corporation only on February 28, 1976.