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 the second and third floors, which continued to be occupied by the Df-owner) subsisted, provided – despite occupation of these floors by the Defendant – for payment of interest @ 6% per annum on the balance consideration (Rs.1.96 crores), which was to be paid at every six months’ intervals.

In other words, interest was to be paid not at the time of the intended sale, but on calendar dates, i.e., on 30.9.2005, 30.3.2006, 30.9.2006, 30.3.2007 and 30.3.2008. No such interest was paid – and not paid because the parties were clear that no agreement was subsisting.

In any case, the subsequent conduct – of not paying the six monthly interest – was also one which indicated that there was no agreement subsisting between the parties. It also amounted to expressing intention not to keep the agreement alive.”

4. The factual position as noticed by the learned Single Judge in paragraphs 8 and 9 of the impugned order is herein as under:-

“8. It is an undisputed fact that in this case at the time of entering into the agreement in respect of entire property, the parties had assessed the market value of the two portions of the property, one part consisting of basement, ground floor and first floor and the second part consisting of second floor and particularly built third floor with terrace. The agreement itself provides that the amount of Rs.4.15 crore was a reasonable market value of basement, ground and first floor and Rs.2 crore was proper value of second and third floor. Even in case of second floor and third floor, the value was put at Rs.1 crore for each floor since plaintiff had agreed, for convenience sake that in respect of these two floors he could get the sale deed executed either in his or in favour of his nominee for this value. Defendant who was the owner of the property had to remain in occupation of the second floor and third floor all along since she had agreed to receive the consideration of second and third floor within a period of three years. It is apparent that it was in the minds of the parties that the prices of the property keep on increasing. To compensate this, the parties had agreed that defendant will continue to receive 6% interest over the unpaid consideration on interval of every six months. Rs.4 lac was to remain as earnest money with her for second floor and third floor.

9. It is an undisputed fact that the plaintiff did not keep even that Rs.4 lac with the defendant as a token of his surviving interest for second floor and third floor. If the interest of the plaintiff had still been there after 11th October 2005 when he got the sale deed executed in respect of one portion, he would have at least kept that token amount of Rs.4 lac with defendant against the total sale consideration of Rs.2 crore. It cannot be presumed that a person wh