( 1 ) BY this order I shall dispose of IA No. 7076/96 under Order 39 Rules 1 and 2 and IA No. 4916/97 under Section 151 Civil Procedure Code Filed by the plaintiff. The first application is for ad interim injunction and the second for release of his two FDRs deposited by the plaintiff in pursuance of the interim order.

( 2 ) THE plaintiff has filed this suit for specific performance of an agreement to sell dated 3. 3. 1996 which defendant had entered into with him for sale of his house No. 107, Block-A, Lok Vihar, Pitampura, Delhi for a sum of Rs. 37,89,000. 00 , a sum of Rs. one lakh was paid on that day; the balance amount was payable by 3. 6. 96 at the time of execution and registration of relevant documents of sale by the defendant. Another cheque of Rs. 3 lakhs was also sent on 7. 3. 96 but defendant did not encash it; the plaintiff had called upon the defendant by legal notice dated 24. 4. 96 to complete the sale, after obtaining requisite clearance from income-tax authorities. No reply to it was sent; but vide letter dated 3. 6. 1996 the defendant informed him that he had committed breach and the amount of earnest money was forfeited. The plaintiff has alleged that he has always been ready and willing to perform his part of the contract but the defendant failed to execute the sale deed and vide his letter dated 3. 6. 96 wrongfully cancelled the agreement on false grounds. Hence this suit, for specific performance. Alongwith the suit IA No. 7076/96 under Order 39 Rules I and 2 was filed on which an exparte interim order dated August 6, 1996 was passed restraining the defendant from selling, alienating or creating third party interest in the said property and that injunction has been extended. This court also simultaneously directed the plaintiff to deposit the balance sale consideration of Rs. 36,89,000. 00 within two weeks in FDR account and to deposit the FDR in the Registry. That was done by the plaintiff. The defendant has filed written statement dispuling the claim of the plaintiff for specific performance. It is alleged that the plaintiff committed breach of the contract and failed to pay the balance amount as agreed within the agreed period, the time was of essence of the sale, and the defendant has forfeited the earnest money of Rs. 1. 00 lakh.

( 3 ) THE plaintiff has also later on filed an application being I. A. 4916/97 claiming release of his amount of Rs. 36,89,000. 00 lying in two FDRs. This application is also being opposed by the defendant.

( 4 ) I have heard learned counsel for the parties.

( 5 ) LEARNED counsel for the plaintiff has contended that it is admitted that the defendant has entered into agreement to sell the suit property for Rs. 37,89,000. 00 , and that earnest money of Rs. 1. 00 lakh was paid to him at the lime of executing the agreement to sell. To show his bona tides, another sum of Rs. 3. 00 lakhs was sent by him by means of a cheque by registered post on 6. 3. 1996 and asked defendant to complete the sale, But the defendant neither encashed it nor sent any reply, and failed to complete the sale in spite of another letter dated 24. 4. 1996; sent to him, and has wrongfully repudiated the agreement while the plaintiff has been ready and willing to complete his part of the agreement; the defendant has thereby committed the breach of the agreement and in the facts and circumstances it is just and proper that the property is preserved by appropriate order and also it is causing great injury and loss to him by depriving him of his money, plaintiff is not required at this stage to pay the sale consideration when the defendant has refused to complete the sale. He could be called upon to deposit the balance amount when the decree for specific performance is passed. He has prima facie shown his willingness and readiness and that he had means to complete the sale. In the circumstances, the amount may be released to him.

( 6 ) WHEREAS learned counsel for the defendant has contended tha