Rajiv Sahai Endlaw, J.

1. The following issue, of the issues framed on 05.07.2011 in this suit for specific performance of an Agreement of Sale of immovable property and for permanent injunction restraining the sole defendant from transferring, alienating or encumbering the property and in the alternative for compensation and, ordered to be treated as a preliminary issue, is for adjudication:

“Whether the suit is barred in view of Order 2 Rule 2 (3) of the Code of Civil Procedure? OPD”

2. Arguments were heard on 06.03.2014. However neither counsel cited the recent judgment of the Supreme Court in Virgo Industries (Eng.) Pvt. Ltd. Vs. Venturetech Solutions Pvt. Ltd. (2013) 1 SCC 625. After inviting attention of the counsels thereto, again opportunity was given to the counsels to make their further submissions if any after studying the said judgment and after further hearing, orders were reserved.

3. The plaintiff has filed the present suit on 26.05.2009, pleading:

(i) that the defendant, vide Agreement to Sell dated 18.11.2006, agreed to sell, the first floor of property No.3, Road No.5, situated at Punjabi Bagh Extension, New Delhi and which property was then under construction, to the plaintiff for a total sale consideration of Rs.1,20,00,000/- out of which a sum of Rs.12,00,000/- was paid as bayana / advance and the balance sale consideration amount of Rs.1,08,00,000/- was to be paid on or before 15.08.2007 i.e. within 300 days from the date of the Agreement to Sell;

(ii) that though under the Agreement to Sell, the plaintiff was not under obligation to pay any further amount to the defendant till the date of delivery of possession but the defendant requested the plaintiff for some more amount and the plaintiff, till the institution of the suit, had paid a total sum of Rs.72,00,000/- to the defendant towards sale consideration;

(iii) the defendant however failed to complete the construction work within the stipulated period of 10 months from 18.11.2006 and thus became liable to pay interest at 24% per annum on the amount received from the plaintiff;

(iv) that though the defendant, as a counterblast to the repeated reminders of the plaintiff, issued legal notice dated 05.07.2007 to the plaintiff but subsequently assured the plaintiff that he will complete the construction work and on this assurance received further sum of Rs.3,00,000/- in cash against receipt dated 27.07.2007 from the plaintiff;

(v) that the defendant however again sent a false and frivolous notice dated 27.07.2007 to the plaintiff and to which a reply dated 13.09.2007 was given by the plaintiff recording that by then a sum of Rs.72,00,000/-had been paid towards purchase consideration;

(vi) that the plaintiff subsequently learnt that the defendant was trying to re-sell the said first floor and create third party rights therein;

(vii) that the plaintiff, having no other option, filed a suit for permanent injunction before the Court of the Senior Civil Judge, Delhi for an order of permanent injunction to restrain the defendant from selling, alienating, disposing of or creating any third party rights in the said first floor; the said suit was accompanied with an application under Order 2 Rule 2(3) of the CPC for leave to allow the plaintiff to file a suit for specific performance and damages in the event of failure / refusal of the defendant to comply with the terms of the Agreement to Sell dated 18.11.2006;

(viii) that in the aforesaid suit for permanent injunction, vide order dated 26.09.2007, the parties were directed to maintain status quo;

(ix) that the said suit was pending adjudication till the date of institution of the present suit;

(x) the plaintiff thereafter learnt that the defendant himself had shifted into the said first floor and which signified that the defendant had no intention to perform his part of the Agreement to Sell dated 18.06.2006.

Hence the suit for specific performance.

4. Summons of the suit were issued and vide