MANU/DE/3278/2011

Equivalent Citation: 2011VIIAD(Delhi)359, 2011(125)DRJ364, ILR(2011)Supp.(4)Delhi540

IN THE HIGH COURT OF DELHI

IA No. 11771/2010 in CS (OS) No. 1447/2010
Decided On: 16.08.2011
Appellants: Surjit Singh Bhatia and Ors.
Vs.
Respondent: Tej Raj Singh Goel
Hon'ble Judges/Coram:
Manmohan Singh, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Ravi Gupta, Sr. Adv., Abhijat and Liza Baruah, Advs.
For Respondents/Defendant: Sandeep Sethi, Sr. Adv., Ashish Aggarwal and A.K.
Mathur, Advs.
JUDGMENT
Manmohan Singh, J.
1. By this order, I propose to decide the Defendant's application under Order VII Rule
11 read with Section 151 Code of Civil Procedure 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 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 v. Mrs. Kanta Bhatia MANU/DE/0913/1994 : AIR 1994
Delhi 349
(ii) Vinod Seth v. Devinder Bajaj and Anr. MANU/SC/0424/2010 : JT 2010

01-08-2019 (Page 1 of 10) www.manupatra.com Singh and Singh Law Firm LLP
 (8) SC 66.
(iii) Pukhraj D. Jain and Ors. v. G. Gopalakrishna MANU/SC/0364/2004 :
(2004) 7 SCC 251
5. The relevant paras of the case of Mrs. Gopal Devi (supra) read as under:
8 . In K.S. Sundaramayya v. K. Jagdeesan, 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.
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

01-08-2019 (Page 2 of 10) www.manupatra.com Singh and Singh Law Firm LLP
to this conclusion the Madras High Court relied on the decision of the Privy
Council in Ardeshir Mama's case MANU/PR/0149/1928 : AIR 1928 PC 208.
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 Section 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 Section 16 of the Specific Relief Act, 1963, which, in
relevant pan, is as under:
1 6 . Personal bars to relief.- Specific performance of a contract
cannot be enforced in favor of a person -
(a) & (b) xx xx xx
(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 Clause (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

01-08-2019 (Page 3 of 10) www.manupatra.com Singh and Singh Law Firm LLP
 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 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 Ors. (supra) read as under:
6. Section 16(C) of the Specific Relief Act lays down that specific
performance of a contract cannot 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 Code of Civil Procedure. 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

01-08-2019 (Page 4 of 10) www.manupatra.com Singh and Singh Law Firm LLP
 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 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 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 v. Shondrilo Naidu MANU/SC/0561/2004 : (2004) 6 SCC 649
(ii) Shri Ravinder Singh v. Shri Chuckles Kohli and Ors., 2011(121) DRJ 208
(iii) Kamala and Ors. v. K.T. Eshwara Sa and Ors. MANU/SC/7542/2008 :
(2008) 12 SCC 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 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 and U v. 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

01-08-2019 (Page 5 of 10) www.manupatra.com Singh and Singh Law Firm LLP
 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 and Anr. v. Dharambir Sahni and 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.
MANU/SC/0516/2005 : 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 Code of
Civil Procedure.
12. The relevant paras of the case of Kamala and Ors. (supra) read as under:
2 2 . 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 Code
of Civil Procedure 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. and I Asson. v. M.V. Sea Success I and Anr.,
MANU/SC/0951/2003 : 2004(9) SCC 512. There is No. bar that the Court cannot
exercise discretion for rejection of the plaint under Order VII Rule 11 Code of Civil
Procedure 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.

01-08-2019 (Page 6 of 10) www.manupatra.com Singh and Singh Law Firm LLP
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 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:
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

01-08-2019 (Page 7 of 10) www.manupatra.com Singh and Singh Law Firm LLP
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.
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 v. 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 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 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 and Anr. 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.

01-08-2019 (Page 8 of 10) www.manupatra.com Singh and Singh Law Firm LLP
 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.
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 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 Code of Civil Procedure 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

01-08-2019 (Page 9 of 10) www.manupatra.com Singh and Singh Law Firm LLP
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.
25. The application is accordingly dismissed.

© Manupatra Information Solutions Pvt. Ltd.

01-08-2019 (Page 10 of 10) www.manupatra.com Singh and Singh Law Firm LLP