RAJIV SAHAI ENDLAW, J.

1. Issues No.1 as under framed on 22nd August, 2008 and ordered to be treated as a preliminary issue, falls for adjudication. 1. Whether this court has no pecuniary jurisdiction to try the present suit and whether the suit is liable to be returned to the plaintiff OPD

2. The suit is for the relief of specific performance of agreement to sell and purchase dated 9th September, 2005. As per the averments in the plaint, the said agreement was for a total sale consideration of Rs.16,40,000/- out of which the plaintiff claims to have paid part sale consideration of Rs.3,57,000/- prior to the institution of the suit. The plaintiff, besides the relief of specific performance claimed in prayer paras (a) and (b) also claims alternate relief in prayer para (c) of the plaint. In the light of the arguments addressed by the counsel for the plaintiff, it is deemed expedient to set out herein below the prayer paragraph (c) of the plaint. In the event this Honble Court comes to the conclusion that specifically performance cannot be decreed then and only then in alternative of specific performance this Honble Court may be pleased to grant a decree of damages to the plaintiff to the tune of Rs.8,60,000/- being the difference between todays value of Rs.25,00,000/- and agreed price of Rs.16,40,000/- and the refund of part payment of Rs.3,57,000/- along with interest @ 24% per annum or such higher some as this Honble Court may deem fit and property against the defendant jointly and severally. The plaintiff undertakes to pay agreed fee on the amount so awarded in favour of the plaintiff;

3. The plaintiff has in the plaint, in para 16 thereof relating to the valuation stated as under:- 16. That the suit is valued for the purpose of the court fee and jurisdiction for Rs.21,00,000/- on which the advoloram court fee is affixed by the plaintiff.

4. The suit besides against the defendants No.1and2 as agreement sellers was also instituted against the defendant No.3 Allahabad Bank. It is the pleading of the plaintiff that the plaintiff after the agreement to sell and after paying advance sale consideration to the defendants No.1and2 learnt that the title documents of the property agreed to be sold had been deposited by the defendants No.1and2 with the defendant No.3 bank by way of equitable mortgage and against which the plaintiff had learnt, a sum of Rs.9,35,000/- was outstanding. The plaintiff in the plaint expressed willingness to pay the said monies directly to the defendant No.3 Allahabad Bank.

5. In this regard, it may also be stated that the summons of the suit were ordered to be issued to the defendants on 14th June, 2006 and vide ex parte order of that date the defendants were restrained from alienating, parting with possession and or creating any third party rights in the property. On the next date i.e. 19th September, 2006 though the counsel for the defendants No.1and2 and the counsel for the defendant No.3 appeared but the defendants No.1and2 had neither filed any written statement nor applied for extension of time for filing the same; on the statement of the counsel for the plaintiff on that date that the plaintiff was prepared to discharge the liability of the bank, this court allowed the plaintiff to discharge the liability of the defendant No.3 bank on account of mortgage of suit property on behalf of defendants No.1and2 by depositing the amount due with the defendant No.3 bank. The amount so deposited was ordered to be subject to adjustment against sale consideration. In order dated 9th January, 2007, it is recorded that the counsel for the plaintiff submitted that the plaintiff had deposited a sum of Rs.9.27 lacs with the defendant No.3 bank. In the order dated 10th December, 2007 it is recorded that the counsel for the defendant No.3 bank stated that an amount of Rs.20,966/- was further due as on 12th October, 2007. The counsel for the plaintiff sought liberty to pay the amount without prejudice to rights and con

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