JUDGMENT :

Bharati H. Dangre, J.

1. Notice being issued in the Second Appeal on 27th September 2019, the respondent has put in an appearance. The parties state that they are ready to argue the Appeal finally since ad-interim relief is granted on 27th September 2019 and the same continue till date.

2. Second Appeal taken up is heard finally by consent of the parties.

3. Rule. Rule returnable forthwith.

4. Nandlal J. Jumani (Defendant) is allottee of land bearing Plot No. 7 admeasuring approx 775.75 sq.m situated at Baner Road, Pune in Sind Cooperative Housing Society Ltd., Aundh, Pune by a lease. The defendant held five shares of the said Housing Society bearing distinctive Nos. 2270 to 2274 under the Share Certificate No. 134. The defendant agreed to sell the suit premises to Shri Rahul Punjabi (Plaintiff) for consideration of Rs. 77,20,975/- and agreed to assign right, title and interest in the suit property in his favour. The plaintiff paid the sum of Rs. Five lakhs to the defendant as earnest deposit and pursuant thereto, a Memorandum of Understanding was executed on 4th April 2005 between the parties.

5. The plaintiff being aggrieved by non-compliance of the stipulation in the Memorandum of Understanding and being not satisfied with the steps taken by the defendant and on his failure to supply the necessary documents in terms of the MOU addressed letters to the defendant on 9th September 2005, 10th October 2005, 1st November 2005 and 6th November 2005 and sought necessary details of the discrepancies which he found in the area of the land mentioned in agreement and in the 7/12 extract, demarcation plan and lease deed. The defendant, on 30th September 2005, responded and alleged that the plaintiff is not interested in completing the deal and threatened to forfeit the deposit paid to him. The defendant by notice dated 31st March 2006 informed the plaintiff that he has terminated the contract since the plaintiff was not ready to accept the title of the defendant over the suit property. Another reason cited was that the plaintiff already was a Member of the said society and in terms of the bye-laws of Sind Co-operative Housing Society, the permission to replace the plaintiff as a Member of the Society in place of the defendant has been rejected. The defendant thus terminated the agreement entered into between the parties and this constrained the plaintiff to file Special Civil Suit before the Joint Civil Judge, Senior Division, Pune.

6. Special Civil Suit numbered as S.C. Suit No. 1626 of 2008 sought specific performance of contract and a declaration that notice 31st March 2006 terminating the agreement is illegal and bad in law. It also sought a relief of permanent injunction restraining the defendants from selling or disposing of the suit property and the mandatory injunction directing the defendant to hold the share certificate no. 134 in respect of the suit property as trustees of the plaintiff.

7. The Suit was resisted by the defendant by filing written statement as well as additional written statement. Execution of MOU was admitted. So also the receipt of earnest money of Rs. Five lakhs. The defendant, however disputed that the MOU was the concluded contract and that the plaintiff was ready and willing to perform the part of the contract and it was the defendant who was in breach of the contract. The defendant also referred to earlier Civil Suit vide No. 485 of 2007 instituted by the plaintiff in the City Civil Court, Mumbai seeking declaration cum permanent injunction only in respect of the present agreement. According to the defendant, the said suit was disposed of on the point of jurisdiction and the plaintiff in the said suit had never sought the relief of specific performance and therefore, according to the defendant, the Suit is barred by applying Order 2 Rule 2 of the Code of Civil Procedure.

8. In defence, it was further stated that the plaintiff is estopped from challenging the right of the defendant as lessee in respect