Surjit Singh Bhatia & Ors. vs Tej Raj Singh Goel (Huf)
2011 Latest Caselaw 3953 Del

*                HIGH COURT OF DELHI: NEW DELHI

                                         Judgment pronounced on: 16.08.2011

+            IA No.11771/2010 in CS (OS) No.1447/2010


SURJIT SINGH BHATIA & ORS                     ..... Plaintiffs
                Through: Mr. Ravi Gupta, Sr. Adv. with
                         Mr. Abhijat & Ms. Liza Baruah,
                         Advs.

                           Versus

TEJ RAJ SINGH GOEL (HUF)                        ..... Defendant
                 Through: Mr. Sandeep Sethi, Sr. Adv. with
                          Mr. Ashish Aggarwal and
                          Mr. A.K.Mathur, Advs.

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?                        Yes

3. Whether the judgment should be reported
   in the Digest?                                            Yes

MANMOHAN SINGH, J.

1. By this order, I propose to decide the defendant's application

under Order VII Rule 11 read with Section 151 CPC for rejection of the

plaint.

2. The facts are that the plaintiffs have filed the present suit for

Specific Performance of agreement to sell dated 27.06.2008 which was

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.1 of 21 executed in respect of the property bearing No.D-104, Defence Colony,

New Delhi.

3. The main contention of the defendant is that on a bare reading

of the plaint along with the documents, the same demonstrates that the

suit is without any cause of action and is barred by law in view of the

various letters dated 14.11.2008, 04.12.2008, 15.01.2009 and 04.02.2009

by which the plaintiffs themselves have terminated the agreement to sell

dated 27.06.2008 and their claim in the said letters was only in respect of

the refund of the amount paid by them at the time of the agreement to sell

alongwith interest and the alleged damages.

4. Mr. Sandeep Sethi, learned Senior counsel appearing on

behalf of the defendant states that after having terminated the agreement

and demand for refund of the amount, the present suit for specific

performance of the agreement is without cause of action and is liable to

be rejected, as in view of the plaintiffs' conduct, the suit for specific

performance is not maintainable under Section 16(c) of the Specific

Relief Act, 1963.

In support of his submissions, Mr. Sethi has referred the

following judgments:-

(i) Mrs. Gopal Devi vs. Mrs. Kanta Bhatia, AIR 1994 Delhi 349

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.2 of 21

(ii) Vinod Seth vs. Devinder Bajaj and Anr., JT 2010 (8) SC 66.

(iii) Pukhraj D. Jain and others vs. G. Gopalakrishna, (2004) 7 Supreme Court Cases 251

5. The relevant paras of the case of Mrs. Gopal Devi (supra)

read as under:-

"8. In K. S. Sundaramayya v. K. Jag-deesan, also, the plaintiff was in appeal. There was an agreement to sell dated 31 January 1958 respecting certain property in Coimbatore. There was some correspondence between the parties which is not quite relevant for our purpose. On 22 May 1958, however, the plaintiff sent a notice through his advocate to the defendant and the concluding portion of the notice was as under (at page 86):-

"As there was no offer even in the telegram to deliver possession to my client of the property as per the terms of agreement, my client was not bound to finish the sale deed as stated in the telegram. You have thus committed default and broken the terms of the agreement. My client has been ever ready and willing to act up to the terms to the property by giving the title deeds for my client's inspection and by handing over possession to my client of the portion in your occupation, you are bound to return the sum of Rs.4,000/- received by you as advance and also pay my client Rs.4,000/- by way of damages.

You are therefore hereby called upon to pay my client the sum of Rs.4,000/- received as advance and also Rs.4,000/- by way of damages, within 3 days of receipt of this notice. Take notice that on default of compliance with this demand, steps will be taken through Court for recovery of the said sums."

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.3 of 21 One of the two counts on which the plaintiff was non-suited by the trial court was that he was not continuously ready and willing to perform the contract and he, therefore, could not obtain relief by way of specific performance. This view was upheld by the Madras High Court and with reference to the concluding portion of the notice reproduced above the court said that such a demand of return of advance paid was quite inconsistent with the subsistence of the contract, and it could not, therefore, be said that the plaintiff was ready and willing to perform his part of the contract. The court also noticed subsequent correspondence between the parties and in one of the letters to the defendant the counsel for the plaintiff had said:--

"My client hereby withdraws the notice he gave you for the refund of the advance and the compensation money as he is advised that he can obtain specific performance itself."

The court said that the subsequent correspondence between the parties only confirmed the view that the plaintiff was not ready and willing to perform his part of the contract, and that the aforesaid statement itself amounted to admission that by previous notice the plaintiff had put an end to the contract by claiming return of the advance amount paid by him, and it would not be open to a party to a contract, who had once elected to accept the breach assuming there was a breach on the part of the other side to cancel that election and treat the contract as if it were subsisting. The court held that notice dated 22 May 1958 as amounting to a definite abandonment by the plaintiff of his right to obtain specific performance of the contract. In coming to this conclusion the Madras High Court relied on the decision of the Privy Council in Ardeshir Mama's case, AIR 1928 PC 208.

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.4 of 21

9. In Ayissabi v. Gopala Konar, the question of law for consideration was whether the plaintiff who repudiated the contract and claimed damages could turn back and seek specific performance. The court again relied on the decision of the Privy Council in Ardeshir Mama (supra), and observed as under (at page 136):-

".....Specific performance is an equitable and discretionary relief. It is necessary for the plaintiff not only to allege but also to prove if traversed that he has performed all the conditions which under the contract he was bound to perform and that he has been ready and willing at all times from the time of the contract down to the date of suit to perform his part of the contract. This principle is set out successfully in S.24(b) (15(b)) of the Specific Relief Act and expanded by judicial decisions. In a suit for specific performance, the plaintiff is also bound to treat the contract as subsisting at all times. Continuous readiness and willingness from the date of contract to the time of hearing without any interruption is the requisite for the grant of the equitable remedy. Plaintiff must treat the contract as subsisting always. After repudiating the contract as was done in Ext. A-2 and electing to sue for damages he cannot turn round and claim specific performance at his sweet will and pleasure."

17. We may refer to S. 16 of the Specific Relief Act, 1963, which, in relevant pan, is as under:-

"16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favor of a person -

(a) & (b) xx xx xx

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.5 of 21

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation.-- For the purposes of cl. (c),--

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."

Clause (c), reproduced above, was not there in the old Specific Relief Act. However, this clause incorporates the view of the Privy Council in the case of Ardeshir Mama (AIR 192S PC 208. The plaintiff is not only to aver but is also to prove that he has performed or has always been ready and willing to perform the essential terms of his part of the contract. It is nobody's case that the plaintiff before us was prevented from performing any particular terms of the agreement to sell, or she could perform those terms having been prevented or waived by the defendant. Here is a case where she completely renounced the agreement to sell. Provisions contained in clause (c) are very stringent. If the plaintiff does not aver in the plaint that he was ready and willing to perform his part of the contract, his suit is likely to fail. Then, as stated above, the plaintiff is not only to aver but also to prove that all through he was ready and willing to perform his part of the agreement. Though the plaintiff in the case

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.6 of 21 before us did aver that she was 'ready and willing to perform her part of the agreement to sell, but she has failed to prove that she was ready and willing to perform the same. We would, therefore, hold Issue No. 3 in favor of the appellant-defendant, and the suit for specific performance filed by the plaintiff- respondent must fail."

6. The relevant para of the case of Vinod Seth (supra) reads as

under:-

"19. If the High Court felt that the prayer in the suit was vexatious or not maintainable, it could have considered whether it could reject the suit under Order 7 Rule 11 of the Code holding that the plaint did not disclose the cause of action for grant of the relief sought or that the prayer was barred by section 14(1)(b) and (d) of the Specific Relief Act. Alternatively, the court could have framed issues and heard the issue relating to maintainability as a preliminary issue and dismiss the suit if it was of the view that it had no jurisdiction to grant specific performance as sought, in view of the bar contained in section 14(1)(b) and (d) of the Specific Relief Act. If it was of the prima facie view that the suit was a vexatious one, it could have expedited the trial and dismissed the suit by awarding appropriate costs under section 35 of the Code and compensatory costs under section 35A of the Code. Be that as it may."

7. The relevant para of the case of Pukhraj D. Jain and others

(supra) read as under:-

"6. Section 16(C) of the Specific Relief Act lays down that specific performance of a contract cannot

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.7 of 21 be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation II to this sub-section provides that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. The requirement of this provision is that plaintiff must aver that he has always been ready and willing to perform the additional terms of the contract. Therefore not only there should be such an averment in the plaint but the surrounding circumstances must also indicate that the readiness and willingness continue from the date of the contract till the hearing of the suit. It is well settled that equitable remedy of specific performance cannot be had on the basis of pleadings which do not contain averments of readiness and willingness of the plaintiff to perform his contract in terms of Forms 47 and 48 of CPC. Here the respondent no.1 himself sent a legal notice rescinding the contract and thereafter filed OS no.801 of 1977 on 7.11.1977 claiming refund of the advance paid by him. In fact the suit for recovery of the amount was decreed by the trial court on 24.7.1985 but he himself preferred a revision against the decree wherein an order of rejection of the plaint was passed by the High Court. In such circumstances, it is absolutely apparent that the respondent no.1 was not ready and willing to perform his part of the contract and in view of the mandate of section 16 of the Specific Relief Act no decree for specific performance could be passed in his favour. The trial court, therefore, rightly held that the suit filed by respondent no.1 was not maintainable."

8. In reply to the submissions made by the defendant, the

plaintiffs' contention is that the plaint does disclose a cause of action. At

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.8 of 21 this stage, the Court has to see the plaint and the averments made therein,

and not to determine the correctness of the facts stated in the written

statement. It is stated in the plaint that after the execution of the

agreement between the parties on 27.06.2008, the defendant had assured

the plaintiffs that all members of the HUF would personally present

themselves before the Sub Registrar to sign documents as confirming

parties. However, the Karta of the HUF failed to show that all the

members of the defendant were present at the time of execution and

registration of the sale deed and had signed the same as confirming

parties on or before 06.10.2008.

9. Mr. Ravi Gupta, learned Senior counsel for the plaintiffs has

argued that the defendant failed to supply the documents evidencing the

details of the members of the HUF and for the said reason, all the default

is on the part of the defendant. On the question that the sale transaction

could not be completed by the date agreed upon, his answer is straight

and simple that the defendant acted in the breach of its obligation. As far

as writing of the letters are concerned, the plaintiffs have admitted that

these letters have been issued by the plaintiffs. Their reply is that it is the

defendant who breached his obligation by not presenting all members of

HUF despite of promise, therefore, the plaintiffs under compelling

circumstances had no option but to ask for refund of the money and

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.9 of 21 terminate the agreement, though all the times, the defendant did not

accept for termination or to refund the money. Every time, the defendant

had agreed to perform his obligation and had also extended time to

complete the transaction as mentioned in the replies. Mr. Gupta says

that all these facts are specifically mentioned in the plaint and at the same

time the plaintiffs have assigned valid reasons for writing such letters.

He also referred statement made in the letters by the plaintiffs as well as

in para 8 of the plaint wherein it was specifically mentioned that his client

is always ready and willing to perform his obligation under the said

agreement and complete the intended sale transaction. In view of these

facts he says that trial in the matter is required. In support of his

submissions, he has referred the following judgments:-

(i) P. D'souza vs. Shondrilo Naidu, (2004) 6 Supreme Court Cases 649

(ii) Shri Ravinder Singh vs. Shri Chuckles Kohli and Ors., 2011(121) DRJ 208

(iii) Kamala and others vs. K.T. Eshwara Sa and others, (2008) 12 Supreme Court Cases 661

10. The relevant para of the case of P. D'souza (supra) read as

under:-

"21. It is not a case where the plaintiff had not made the requisite averments in the plaint. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.10 of 21 which was required of him to be done in terms of the agreement for sale. The plaintiff was a tenant of the defendant."

11. The relevant para of the case of Shri Ravinder Singh (supra)

read as under:-

"5. A Division Bench of this Court in Inspiration Clothes & U Vs. Colby International Ltd., 88 (2000) DLT 769, held that the power to reject the plaint can be exercised only if the Court comes to the conclusion that even if all the allegations are taken to be proved, the plaintiff would not be entitled to any relief whatsoever. It was also observed that where the plaint is based on a document, the Court will be entitled to consider the said document also to ascertain if a cause of action is disclosed in the plaint or not though the validity of the document cannot be considered at this stage. In Avtar Singh Narula & Anr. Vs. Dharambir Sahni & Anr. 150 (2008) DLT 760 (DB), this Court reiterated that the power to reject the plaint has to be exercised CS(OS) No.1440/08 Page 4 of 29 sparingly and cautiously though it does have the power to reject the plaint in a proper case.

In Popat and Kotecha Property v. State Bank of India Staff Assn. 2005 7 SCC 510, Supreme Court noted that the real object of Order 7 Rule 11 of the Code of Civil Procedure is to keep irresponsible law suits out of the Courts and discard bogus and irresponsible litigation. It was further held that dispute questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 of CPC."

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.11 of 21

12. The relevant paras of the case of Kamala and others (supra)

read as under:-

"22. For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject matter of an order under the said provision.

23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.

24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law."

13. It is settled law that while deciding the application under

Order VII Rule 11 CPC for rejection of plaint, the averments in the plaint

have to be seen and not the pleas taken in the written statement. The

documents are also to be taken into consideration, which are

annexed with the plaint in view of the judgment in the case of

Liverpool & London S.P. & I Asson. vs. M.V. Sea Success I & Anr.,

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.12 of 21 2004(9) SCC 512. There is no bar that the Court cannot exercise

discretion for rejection of the plaint under Order VII Rule 11 CPC at any

stage of the suit before the conclusion of trial.

14. Let me now examine the present case in view of rival

submissions made by the parties.

15. The learned Senior counsel for the defendant has relied upon

the letters dated 14.11.2008, 04.12.2008, 15.01.2009 and 04.02.2009 in

support of his submissions. The said letters have been filed by the

plaintiffs along with the plaint. Therein the plaintiffs has undoubtedly

requested the defendant to refund the entire amount along with the

interest @ 24% per annum and also informed the defendant about the

termination of the said agreement. In all the letters the plaintiffs have

repeated the similar statement.

16. In reply to the said letters, the defendant had never agreed to

refund the money or made any statement agreeing about the termination

of a contract rather from the replies, it indicates that the defendant was

always ready and willing to perform his part of the contract and also

extended period from time to time and called upon the plaintiffs to

complete the transaction after making the balance amount in terms of the

agreement to sell dated 27.06.2008. In the letter dated 24.01.2009, it

was also informed by the defendant to the plaintiffs that he has become

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.13 of 21 entitled to forfeituring the amount received, but at the same time, it was

also mentioned that he is willing to extend the period of the conclusion

of deal in terms of the said agreement.

17. After execution of the agreements, the first letter written by

the plaintiffs was on 15.10.2008. The relevant extract of the said letter

reads as under :

"Your letter has made us worried about your intentions. We reiterate that no such extension of time was ever sought by any of us. The sale documents had to be signed and registered on or before 6.10.2008 and balance consideration was to be paid by us to you. We have since been waiting for your call to inform us whether all members of your HUF are present in Delhi as per your own assurance, to complete the formalities. We are ready with the required funds. However, instead of informing us as to when you (as Karta of Vendor) and the other members of the HUF (as Confirming Parties) would attend the Sub-Registrar's office to sign the sale documents, you have written this mischievous letter giving an alleged One Time Extension, when no extension has ever been sought by us.

You have yourself breached the Agreement. As you are aware, we have always been ready and willing to complete the sale/purchase of the abovesaid property and request you kindly inform us the date and time when you and other members of your HUF will attend the Sub Registrar's office for completion of sale formalities and taking balance payment."

18. In their second letter dated 14.11.2008, the similar grievance

was made by the plaintiffs. The relevant portion are reproduced here

below :

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.14 of 21 "That when the final date of conclusion of the transaction was approaching, we requested you number of times as to status of calling all the co-parceners of the said HUF and also the necessary details about the constitution and relevant documents filed with income tax authorities as regards the said HUF, however, no response was received from you for the reasons best known to you. It seems that since the real estate prices during such period were rising sharply and you intentionally delayed the matter in order to wriggle out of the valid and binding contract.

Nothing was heard from your side since then and as a result thereof, our huge investments made I the property has been struck up un-necessarily without any gain to us and rather huge losses/damages had occurred to us, just because of your un-lawful act and conduct by not fulfilling your commitments within the agreed time frame.

We are in complete shock to see such an irresponsible behavior on your part and in these circumstances, we having left with no option would request you to kindly refund the entire amounts so paid to you along with interest @ 24% per annum from the date of payment till the date of actual refund along with damages/losses to the tune of RS. 2,00,00,000/- (Rs. Two Crores Only) suffered to us, within 10 days from the date hereof, failing which we shall have no option except to proceed against you in court of law and in such an event, all the consequences would follow at your risk and cost."

19. In their third letter dated 04.12.2008, it was again mentioned

that the plaintiffs were ready and willing to perform their part of the

contract but since there was a breach on the part of the defendant,

therefore the refund was asked for along with interest and damages and

contract was terminated but under these circumstances, defendant had no

right to forfeit the earnest money.

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.15 of 21

20. The plaintiffs in para-19 of the plaint have stated that in the

month of May, 2009 the plaintiffs had learnt through their friends that the

defendant had deliberately and dishonestly concealed from the plaintiffs

that the suit property had been attached by the Debt Recovery Tribunal

vide order dated 10.07.2001 passed in RC No.77/2000 "Union Bank of

India vs. M/s Logic Systems (P) Ltd." and in August, 2009 the defendant

approached the plaintiffs and re-assured the plaintiffs that the defendant

had all intention of completing the agreed sale transaction and would take

all the possible steps to settle the dispute with the bank. In para-20, it is

also stated that the defendant also requested the plaintiffs to withdraw the

police complaint and the plaintiffs assured the defendant that the police

complaint would be withdrawn once the dispute with the bank is settled

and the cloud over the title and the status of the property in dispute is

clear.

21. A specific averment is made by the plaintiffs in the plaint that

in the month of May, 2010 again the plaintiffs came to know that the

defendant was meeting various real estate agents for the purpose of

negotiating sale of the suit property with third parties and also came to

know that the dispute pending in the Debt Recovery Tribunal had been

settled in March, 2010 and the settlement certificate has been issued in

that case. Thereafter, the plaintiffs issued a letter dated 24.05.2010

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.16 of 21 calling upon the defendant to execute the sale deed and perform his part

of the obligation under the contract. However, the defendant ignored the

said letter issued by the plaintiffs. The relevant extract from the said

letter reads as under:-

"Since the said property was an HUF property, you had assured and undertook that you would be calling other members and co-parceners of the HUF for execution and registration of the sale deed in our favour.

We have paid to you a further sum of Rs.1,60,00,000/-. Thus, total sum of Rs.2,61,00,000/- (Two Crores & Sixty One Lacs Only) stands paid by us to you under the present sale transaction. And a further sum of Rs.5,00,000/- to Mr. Syed Salim, in addition to Rs.2,61,00,000/-. Thus, total sum of Rs.2,66,00,000/-.

When the final date of conclusion of the transaction was approaching, we had requested you to complete all the formalities so as to complete the sale transaction. However, no response was received from you for the reasons best known to you, at that time.

Since you were not coming forward to complete the sale transaction and our large amount(s) were involved, we vide our letter dated 14.11.2008 had made a demand for the refund of the entire money along with interest calculated @ 24% and also claimed damages quantified to Rs.2,00,00,000/- (Rupees Two Crores Only) over and above the said amount paid to you. However, we had maintained our rights upon the said property till you refund our dues.

This letter of us was duly replied by you through your Advocate M/S. S.N.G. Consultants vide reply

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.17 of 21 dated 24.11.2008. Though various false averments were made in the said reply, but, you had impressed upon to complete the sale transaction in our favour instead of refunding our amount(s).

Considering your attitude, we again impressed upon you for the refund of our amount(s) vide legal notice dated 04.12.2008 followed by a letter dated 15.01.2009 & another legal notice dated 04.02.2009. However, you vide your legal reply dated 24.01.2009 followed by another legal reply dated 07.02.2009 still persisted to complete the sale transaction in our favour.

Though we were always interested to purchase the said property, however, considering your attitude, we were asking for refund of our amount(s).

Later on we came to know that you were delaying the matter and completion of the sale transaction in our favour since the said property was a subject matter of case/litigation/dispute concerning the Union Bank of India, Asset Recovery Branch, Connaught Place, New Delhi. The said proceedings were pending disposal before the Court of DRT II, Delhi in RC No.77/2000 and also in Appeal No.08/07. The said proceedings are pending disposal before the forum concerned.

Finding no other alternative, we had lodged a Police Complaint with the S.H.O., P.S. Defence Colony, New Delhi.

In furtherance thereof you Syed Saleem was summoned by the Investigating Officer during the investigation proceedings. At that time you people had approached us with an assurance that you would complete the sale transaction in our favour and get the matter cleared from the aforesaid court proceedings pending before DRT II, Delhi and further requested not to precipitate the issue and press our complaint.

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.18 of 21 Relying upon your such assurances, we did not press our complaint before the Police, which complaint is otherwise pending investigation till date.

In order to conclude the deal and close the issue, you are requested to complete the necessary formalities at your end and complete the sale transaction in our favour at the earliest. We are prepared with the funds and are willing to complete the sale transaction at the earliest.

You are requested to inform us the time when you would be in a position to complete the sale transaction in our favour so that the necessary sale drafts may be got prepared by us at our end."

22. In the present case, it is not in dispute that by various letters

the plaintiffs have repeatedly asked the defendant to refund the advance

amount along with interest and damages and also terminated the contract,

but at the same time the plaintiffs have made the specific statement in the

plaint and tried to justify their act explaining that under which

circumstances these letters are written. It is to be examined as to whether

the justification given by the plaintiffs in various paras of the plaint is

tenable or not. In case, the plaintiffs have failed to prove the same in

total, then the suit of the plaintiffs must fail in view of the decisions

referred by the defendant. However, in the light of the statement made

by the plaintiffs in various paras of the plaint, the relief sought by the

defendant in the present application cannot be granted as this Court is of

the view that the trial in the suit is required. Section 16(c) of the Specific

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.19 of 21 Relief Act, 1963 requires not only the averment about the readiness and

willingness of the plaintiff in a suit, but also the proof of readiness and

willingness. It is settled law that when such readiness and willingness is

in dispute, then there cannot be proof unless the trial is held in the matter.

23. It is pertinent to mention that issues in the main suit have also

been framed which include the rival submissions of the parties made in

the present application. The plaintiffs have also adduced their evidence

by way of affidavit. But during the hearing of the present application, the

plaintiffs have also filed an application under Order VI Rule 17 CPC

being I.A. No.11154/2011 for amendment of plaint, seeking alternative

relief, in case the Court is not inclined to grant the relief for specific

performance of the said agreement to sell dated 27.06.2008 in favour of

the plaintiffs, to refund to the plaintiffs the earnest money along with the

interest due thereon @ 24% per annum from the date of payment till

realization. The said application is yet to be taken up.

24. After having considered the over-all facts and circumstances,

this Court is not inclined to allow the prayer made in the application,

however, the objection raised by the defendant that the suit is not

maintainable, is kept open and the same shall be considered by the Court

after trial without the influence of the order passed in this application.

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.20 of 21

25. The application is accordingly dismissed.

I.A. No.11154/2011 (u/o 6 R 17 CPC)

List on 14.11.2011.

MANMOHAN SINGH, J AUGUST 16, 2011 ka

I.A. No. 11771/2010 in CS(OS) No.1447/2010 Page No.21 of 21