RAJIV SAHAI ENDLAW, J.

1. The application of the plaintiff under Order 12 Rule 6 of the CPC for passing a decree for specific performance of an agreement to sell of immovable property, forthwith is for consideration.

2. The agreement to sell dated 27th February, 2004 of Industrial Shed No. C-25, DSIDC, Industrial Complex, Rohtak Road, Nangloi, New Delhi by the defendant in favour of the plaintiff is not in dispute. As per the said agreement, out of the total agreed sale consideration of Rs. 68 lacs, the plaintiff paid Rs. 12 lacs to the defendant at the time of agreement to sell, a sum of Rs. 25 lacs was agreed to be paid on or before 5th May, 2004 against the defendant handing over the peaceful, vacant and physical possession of the property and executing and registering a deed of sale of the property in favour of the plaintiff and the balance sale consideration of Rs. 31 lacs was agreed to be paid within a period of one year from the date of payment of Rs. 25 lacs, in easy installments on monthly interest at the rate of 1% per month.

.3. The plaintiff instituted the suit on 28th September, 2004 on the averments that he on 28th April, 2004 had written to the defendant for completing the sale transaction by 5th May, 2004 failing which the defendant was to pay 1% per month interest on Rs. 12 lacs already paid as well as on Rs. 25 lacs which the plaintiff claimed to have kept in reserve; that on 5th May, 2004 the plaintiff went to the house of the defendant but the defendant was not available; that the plaintiff thereafter went to the office of the sub-Registrar concerned but the defendant did not turn up there also; that the plaintiff in the evening of 5th May 2004 sent a telegram to the defendant for doing the needful; that on 6th May,

.2004 a notice was got sent by the plaintiff to the defendant; that on 19th May, 2004 the plaintiff wrote to the police and other authorities; that the defendant met the plaintiff in second week of June, 2004 and orally promised to complete the transaction by 30th June, 2004 on which date the defendants licencees in the property were stated to be vacating the property; that the defendant, however, still did not fulfill his part of the agreement and threatened to dispose of the property to a third party; that the licencees of the defendant in the property had vacated the property on 23rd July, 2004 but the defendant had still not fulfilled his part of the agreement; that the plaintiff finally got issued notice dated 27th July, 2004 to the defendant but the defendant avoided to receive the same.

4. Vide an ex parte order dated 4th October, 2004, the defendant was restrained from creating any third party interest in the property. The plaintiff could not serve the defendant for 9th February, 2005 and 9th May, 2005. Though the plaintiff applied under Order 5 Rule 20 of the CPC on 18th July, 2005 for substituted service but no orders on the said application were made and the defendant was served at his residential address and appeared before the Court on 16th August, 2005 through counsel.

5. The defendant filed a written statement on 5th October, 2005 and in which the defendant inter alia averred that the plaintiff had instituted the suit to overcome the breach committed by the plaintiff himself; that the plaintiff had not been in a financial position to make payment to the defendant as per the commitment made in the agreement; that the plaintiff had in relation to some other transactions backed out in March, 2004 owing to financial problems; that the plaintiff is a litigant, in the habit of filing frivolous proceedings; that the plaintiff after the execution of the agreement dated 27th February, 2004 had started demanding physical possession of the property prior to making payment of Rs. 25 lacs and execution of the sale deed and which was not in terms of the agreement and was not acceptable to the defendant and the defendant intimated the plaintiff that the defendant will execute the sale deed aga

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