SANJAY KISHAN KAUL, J.

1. The two suits for specific performance are result of relationships which have gone sour. The specific performance is being sought in respect of proposed purchase of flats on the 4th floor of the building to be constructed on property bearing no.34, Feroze Shah Road, New Delhi (“the said property” for short). In suit No.571/1990 (“first suit” for short), an agreement to sell was executed while in respect of suit No.633/1990 (“second suit” for short) only a receipt for the money was executed. The receipt of money in both the cases is undisputed. The purchasers in the first suit are Mr.Mohan Lal Ahuja, his wife and children as per the agreement to sell dated 02.04.1988 for 1866 square feet on the 4th floor of the said property along with a garage while the receipt in the second suit dated 31.01.1988 is once again for a flat of 1866 square feet on the 4th floor of the said property. The phraseology used in the receipt is “provisional booking”. The second suit is filed by Smt.Veena Ahuja, who is the wife of the brother of Sh.Mohan Lal Ahuja, first plaintiff in the first suit. The common seller in the two suits is Sh. Tarun Chandra, who was undisputedly a family friend. The issues were framed separately in the two matters and trial has been conducted separately, but thereafter the hearing proceeded simultaneously in the two suits as there were certain interlinked factors. It is in view thereof that the common facts are being set out hereinafter and the issues are being dealt with separately on the basis of testimony led in each of the suits.

2. The said property belonged to one Lala Adishwar Lal who passed away on 16.04.1950. On his demise, the property passed on his surviving sons and widow. A partition deed dated 30-31.03.1972 was executed whereby the property was sought to be partitioned by metes and bounds. The property is stated to have been mutated thereafter in the name of Class I heirs. The owners of the property entered into an agreement dated 02.08.1979 with M/s Kailash Nath Associates for development of the said property. This agreement is stated to have been followed up by a supplementary agreement dated 06.11.1986. A total of 50 flats are stated to have been constructed in two towers and disputes arose between the builder and the owners. The owners filed suit No.321/1996 (much after the filing of the present two suits). It is the case of the common defendant in the present two suits that the owners arrived at a settlement dated 24.05.1999 dividing the flats with an arrangement of 19:29 between the owners and the builder and 2 flats were jointly owned.

3. It is the common case of the plaintiffs that the supplementary agreement dated 06.11.1986 was not disclosed by the defendant nor was the aforesaid settlement disclosed before this Court. Interim injunction orders were passed only in the second suit and possession of one flat bearing no.403 on the 4th floor of the said property was directed to be retained. This injunction order and the retention of the flat separately is also stated to have formed a part of the settlement agreement dated 24.05.1999 recording that the possession would be handed over to the person as stated by the Court in the present legal proceedings.

.4. One other fact which is required to be noticed in respect of this flat which had been preserved is the plea of the defendant that the flat actually belongs to one of his cousin brothers namely Mr.Anurag Chandra, who is also a signatory to the settlement. Mr. Anurag Chandra did approach this Court by filing an interim application seeking vacation of the Order against flat no.403 but was not successful. The other flat which forms subject matter of the first suit is alleged to have been sold by the defendant to one Ms.Sushila Sukumaran under the circumstances discussed hereinafter. Facts in relation to First Suit “

.CS(OS)571/1990

.5. It is the case of the plaintiffs that the defendant represented to them that he was constructing a

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