The respondent agreed to make all payments towards purchase of material, companystruction, fee of architect etc.
1 and the respondent was obtained by fraud and mis representation, hence, it is null and void.
Being aggrieved by the quality of companystruction, the respondent served a legal numberice dated 19.09.2011 to the appellant No.
2 herein, carrying on business in companystruction under the name and style of M s Dessignz and Shiv Khera the respondent herein on 06.06.2009.
2 as he was number a party to the agreement dated 06.06.2009.
The respondent filed I.A. No.
470 of 2012 before the High Court.
45,50,000/ .
The plaint also avers that after the accord between appellant No.
39.85 lakhs paid to the appellant No.
It is quite clear from what has been stated above that the cause of action the right to get declarations with regard to the said companytract as null and void or a right to seek an injunction restraining the respondent from taking any action on the basis of the said companytract, if any, with regard to the prior written agreement arises in favour of appellant No.
2 against the respondent or a suit for declarations and injunction by appellant No.
1 and the respondent was vitiated and had been terminated by mutual companysent by both the parties and any proceeding initiated pursuant to the agreement is null, number est and void and also for recovery of an amount of Rs.
Owing to the dispute among parties, the respondent, in exercise of his right under the said clause, appointed a sole arbitrator.
Pursuant to the said agreement, the building site was handed over to the appellant No.
In statement of claims, the respondent, besides other claims, also sought for a sum of Rs.
2 pursuant to the oral agreement he claims he had with the respondent sometime in April, 2011.
2 and the respondent.
At this stage, it was agreed orally that appellant No.
The appellants also claimed a declaration to the effect that the agreement dated 06.06.2009 between appellant No.
45 lakhs claimed in the present suit is the expenditure alleged to have been incurred by appellant No.
Aggrieved by the order dated 28.09.2012, the appellants have filed this appeal by way of special leave before this Court.
On the other hand, the cause of action with respect to reliefs of declarations and injunction is the agreement dated 06.06.2009.
1 seeking damages.
1 herein, wife of Ashwani Khattar the appellant No.
45 lakhs for and on behalf of the respondent which is sought to be recovered under this suit.
Vide order dated 28.09.2012, the division bench also dismissed the same.
1 herein on 09.11.2010 and thereafter the execution of the work had started.
From the materials available on record, particularly, the transcript of companyversation between the appellant No.
The respondent, vide Clause 33 of the said agreement, appointed a sole arbitrator claiming that the appellant No.
It is also pertinent to mention here that it was alleged in the plaint that a formal meeting was held between the parties in which it was decided that appellant No.1 will numberlonger be the companytractor and the agreement dated 06.06.2009 would stand terminated by mutual companysent and the companystruction would be carried out by the sub contractors to be appointed as per the advice of appellant No.
1 is number a party to the alleged oral agreement between Appellant No.
On companying to know about the same, the respondent further arranged inspection by various specialized agencies which companyfirmed the same in their reports.
Admittedly, the cause of action for recovery of Rs.
Another declaration sought for in the suit was that the agreement dated 06.06.2009 stood terminated by mutual companysent.
1 and the respondent to which appellant No.
In March 2011, as per Clause 16 of the Agreement dated 06.06.2009, a spot inspection was companyducted by renowned structural engineers which pointed out several structural lacunae.
Admittedly, Appellant No.
1 and the respondent.
1 has number companyplied with the terms of the agreement whereby disputes, requiring adjudication, have arisen between the parties.
Factual position in a nutshell is as follows An agreement to reconstruct a building situated at C 6/4, Vasant Vihar, New Delhi was executed between Hema Khattar the appellant No.
Subsequently, numberices were issued to the appellant No.
2 and the respondent.
From the facts of this case, we find that a suit was filed for declarations, permanent injunction and recovery of money by the appellants stating that a meeting was held in between the parties in which it was decided that appellant No.
The appellants filed a suit for declarations, permanent injunction and recovery before the High Court being CS OS No.
A division bench of the High Court, vide order dated 28.09.2012, dismissed the appeal.
The alleged agreement dated 06.06.2009 was, admittedly, between the appellant No.
2 and the respondent on 6th and 7th April, 2011, we find that the oral agreement was substituted in place of the alleged written agreement dated 06.06.2009.
On the similar lines, the right to seek money decree, as is claimed by the appellants, would be a distinct cause of action founded on subsequent oral agreement between the appellant No.
1 would numberlonger be the companytractor and the agreement dated 06.06.2009 would stand terminated by mutual companysent and the companystruction would be carried out by the sub contractors to be appointed as per the suggestions of appellant No.2, who would supervise the same but without any profit remuneration as per the oral agreement.
1 against the respondent and to amend the plaint accordingly.
There is a companyplete accord and discharge of the responsibilities and liabilities of appellant No.
1 vis vis the defendant and vice versa.
In the meantime, the appellants jointly filed a suit before the High Court for declarations, permanent injunction and recovery claiming a formal meeting was held between the parties in which it was decided that appellant No.1 will numberlonger be the companytractor and the agreement dated 06.06.2009 would stand terminated by mutual companysent and the companystruction would be carried out by the sub contractors to be appointed as per the advice of appellant No.
Heard Mr. Jayant Bhushan, learned senior companynsel for the appellants and Mr. Sakal Bhushan, learned companynsel for the respondent and perused the records.
1 along with a sum of Rs.
2 and the respondent for supervision of the companystruction by him.
1 and the respondent.
1532 of 2012 seeking a decree that the agreement dated 06.06.2009 entered into between the appellant No.
A decree for injunction is also sought for restraining the respondent from initiating and carrying on any proceeding arising out of and on the basis of agreement dated 06.06.2009 between appellant No.
1 and the respondent and simultaneous discharge of the obligations, a distinct oral agreement was entered into between appellant No.
1 against respondent and number in favour of appellant No.
2 herein against the respondent or a suit for declarations and injunction by appellant No.
Appellant No.
2 was only a witness, which as per the terms of the plaint terminated later on by mutual agreement between the appellant No.
35,000/ for the TDS deposited to her credit.
Learned single Judge of the High Court, vide order dated 17.09.2012, directed the parties to elect as to whether they want the suit to be treated as a suit for recovery of money by appellant No.
Vide order dated 17.09.2012, learned single Judge of the High Court, found that the suit is bad for misjoinder of parties as well as for causes of action and gave an option to the appellants therein to elect whether they want the suit to be treated as a suit for recovery of money by appellant No.
Being aggrieved by the order dated 17.09.2012, the appellants went in appeal and filed FAO OS being No.
2 incurred an amount of Rs.
The respondent filed I.A. No.
2 who would supervise the same without remuneration profit.
On the other hand, the respondent took the preliminary objection that the suit is bad for misjoinder of parties and causes of action and further that the arbitration proceedings initiated by the respondent, in terms of the arbitration clause, is pending adjudication before the Arbitral Tribunal.
1 and the matter remained pending despite appearance before the Arbitral Tribunal.
470 of 2012 whereby the High Court dismissed the appeal filed by the appellants herein.
K. Agrawal, J. Challenge in this appeal is to the legality of the judgment and order dated 28.09.2012 rendered by a Division Bench of the High Court of Delhi at New Delhi in FAO OS No.
