The central legal point established in the judgment is the requirement of readiness and willingness to perform the agreement for specific performance, the effect of modification of the original agreement, and the disentitlement from specific performance due to prior agreement to sell the property to another party.

Rajiv Sahai Endlaw, J.

1. The plaintiff has sued for specific performance of the Agreement dated 14th May, 2005 of sale of property No.J-3/37, Rajouri Garden, New Delhi and for permanent injunction restraining the defendant from dealing with the said property in contravention of the said Agreement, pleading:-(i). that the defendant had vide Agreement to Sell dated 14th May, 2005 agreed to sell the property to the plaintiff for a total sale consideration of Rs.30 lacs out of which Rs.6 lacs was paid as earnest money at the time of execution of the Agreement to Sell and another Rs.4 lacs was paid on the asking of the defendant on 19th May, 2005; (ii). that at the time of the agreement, a portion of the property agreed to be sold was occupied by the two brothers of the defendant who had in the year 1982 filed a suit with respect thereto against the defendant and which was at the time of Agreement to Sell still pending consideration; (iii). that the said suit filed by the brothers of the defendant was withdrawn on 1st August, 2005 by filing an application under Order 23 Rule 3 of the CPC and the said brothers of the defendant vacated the property and the defendant came into possession of the entire property; (iv). that the defendant however vide legal notice dated 22nd August, 2005 revoked the Agreement to Sell; (v). that upon the plaintiff approaching the defendant, the defendant further demanded Rs.4 lacs which was paid by the plaintiff on 31st August, 2005 and the defendant waived the notice dated 22nd August, 2005; (vi). that the plaintiff on 31st August, 2005 also purchased non-judicial stamp paper worth Rs.40,000/- for execution of the Sale Deed; (vii). that the plaintiff in anticipation of the Sale Deed to be executed by the defendant in his favour, approached M/s. Janak Properties property dealers/builders who proposed to build the suit property; the said property dealer/builder asked the plaintiff to bring the original documents before they undertook construction and the plaintiff on 30th October, 2005 took the defendant with him to the said property dealer / builder and handed over all the original documents as required by the property dealer/ builder and the plaintiff, defendant and the said property dealer / builder also signed a Memorandum of Understanding (MoU) dated 30th October, 2005; (viii). that the defendant however wanted the sale consideration to be increased to Rs.50 lacs; (ix). that the plaintiff applied for and obtained refund of the non-judicial stamp papers on 7th December, 2005; (x). that upon the plaintiff again approaching the defendant the defendant agreed to execute the documents provided he is paid Rs.10 lacs and the said amount was paid on 26th May, 2006 and the defendant promised to execute the documents on 7th August, 2006; (xi). the defendant however failed to execute the documents; and, (xii). that on 22nd September, 2006 the plaintiff received summons of the suit for permanent injunction filed by the defendant in the Court of the Civil Judge, Delhi to restrain the plaintiff from dispossessing the defendant from the said property; Hence this suit.

2. Summons of the suit and notice of the application for interim relief were issued and vide ex parte ad interim order dated 13th October, 2006 which was subsequently confirmed the defendant was restrained from creating any third party interest in the property.

3. The defendant has contested the suit by filing a written statement pleading:-(a). that the plaintiff failed to pay the balance sale consideration and get the Sale Deed registered in terms of the Agreement dated 14th May, 2005 which was cancelled by the defendant through Notice dated 22nd August, 2005 and to which no reply was given by the plaintiff; (b). that the plaintiff has paid advance sale consideration of Rs.6 lacs and Rs.4 lacs i.e. total Rs.10 lacs only and no payments as alleged of Rs.4 lacs on 31st August, 2005 or of Rs.10 lacs on 26th May, 2006 were made by the plaintif