( 1 ) ALONGWITH his suit for specific performance on the basis of a Memorandum of Understanding with regard to sale of premises No. C-63 Meharani Bagh, New Delhi, the plaintiff has also moved an application under Order 39 rules 1 and 2 seeking to restrain the defendants from "parting with ownership/possession" of the said premises. It is that application which has led me to pen these lines.

( 2 ) FIRST a bird-eye view of the facts. 3. The plaintiff claims that Dr. Ravi Singh defendant for himself and on behalf of the other co-owners who too are arrayed as defendants, executed a Memorandum of Understanding agreeing" thereby to sell the building for a consideration of Rs. 2,35,00,000. 00 and in terms of the said agreement he even received a payment of Rs. 500,000. 00 through a Bank draft but is now refusing to proceed ahead with the execution of a sale deed.

( 4 ) THE defendants allege that Dr. Ravi Singh had no authority to act on behalf of the other co-owners and as such the Memorandum of Understanding does not bind them. It is not disputed that a cheque for Rs. 5,00,000. 00 was received by Dr. Ravi Singh. However, it is claimed that as the said cheque was not honoured by the Bank and as no payment Hereafter was made to him, the negotiations failed and it was for this reason that no Agreement of Sale was entered into.

( 5 ) TIME now to come into grip with the arguments advanced.

( 6 ) AS per Mr. Marwah the Memorandum of Understanding is not enforceable as Dr. Ravi Singh had no authority from the other co-owners to negotiate and to enter into the agreement and that in any case in the absence of an agreement of sale as envisaged by section 269 UC of the Income Tax Act, 1961, the Memorandum cannot be acted upon.

( 7 ) AS far as the first contention of Mr. Marwah is concerned, the fact that Dr. Ravi Singh entered into an agreement of lease, a Memorandum of Understanding and an Agreement of Sale with regard to this very property with another company and admittedly on the basis of a power of attorney on behalf of the others, cannot he lost sight of. It may not be out of place to mention that when Mr. Rohatgi appearing for the plaintiff showed in court a photocopy of the alleged power of attorney and challenged Mr. Marwaha to deny it, Mr. Marwah considered it perhaps more convenient to skirt the challenge.

( 8 ) COMING to section 269 UC of the Income Tax Act it merely imposes restrictions on transfer of certain immovable properties in the absence of an Agreement in the prescribed form, for transfer. It does not debar the parlies concerned from entering into a Memorandum of Understanding which, if otherwise valid and enforceable, can be made the basis for its specific performance though, for uimate transfer, the provision of section 269 UC shall have to be complied with.

( 9 ) MR. Marwah had also drawn my attention to a judgment of the Supreme Court in Amritsar Sugar Mills v. Commissioner of Sales Tax AIR 1966 SC 1242. In the said case the contract by the Mills was to actually deliver goods at a place to be communicated. Clause II of the contract contemplated a destination in spite of constructive delivery having been contracted to be made at one Rohana Kalan station. Further, the contract was not to actually deliver at some place to be chosen or assented to by the assessce mills but at any place without restrictions. The contract required nothing more than a mention of the place. The court observed :

"when the despatch instructions were given, it was not a case of performing the contract but specifying a term of the contract. If the place of actual delivery had been specified and it was a question merely of communicating the route by which the goods were to be delivered. This would perhaps relate to the mode of performance of contract. But communication of the place where actual delivery is to he given does not relate to inc mode of performance but formation of the contract

( 10 ) I fail to see as to how this judgment so fo