SUNIL GAUR, J.

1. Appellant’s suit for specific performance of an Agreement of Sale of 31st March, 2005 in respect of second and third floor (including terrace) as well as servant quarters of Property bearing No.E-1, East of Kailash, New Delhi, has been held to be not maintainable by the learned Single Judge vide order of November 09, 2009, which is impugned in this appeal.

2. Upon completion of the pleadings, at the stage of framing of issues, learned Single Judge has taken note of the objection of the Respondent regarding maintainability of the suit raised in the written statement, which is as follows:-

“15. Para 15 is denied. No cause of action accrued at any time. The suit is not maintainable.”

3. In substance, preliminary objections taken in the written statement were as under:-

“By taking back the earnest money – adjusting Rs.four lakhs meant for second and third floors in the sale deed of basement, ground and first floors – the agreement for second and third floor stood repudiated, abandoned and discharged. There was no earnest money left thereafter. It is also not that the Rs.four lakhs were paid back – replenished a week or so later.

Assuming the agreement (for t