V.K. Jain, J.

1. This is a suit for specific performance of a Memorandum of Understanding and grant of damages. Defendant No.1 is the brother of plaintiff No.1 and defendant No.2 is the wife of defendant No.1. Plaintiff No.2 is the wife of plaintiff No.1. The parties to the suit were carrying various businesses and owned different properties in the names of the various partnerships/companies formed by them. One of such properties was property bearing No.116, Sector 59, Faridabad. Certain disputes arose between the parties which were resolved through intervention of an arbitrator and an MOU dated 28th August/11th September, 2001 was entered into between

2. In the parties. The MOU, to the extent it is relevant, provided that plot No. 116, Sector 59, Faridabad which had been acquired in the name of M/s Excellent Hosiery Products, shall belong to the plaintiffs. It was further agreed that the loans raised by another firm Excellent Hosiery Products against the above referred plot shall be repaid by the defendants immediately on the plaintiffs relinquishing/transferring their share in property No. 5, B.D. Estate, Lancers Road, Timarpur, Delhi, in favour of defendant Nos. 1 and 2. It is alleged that pursuant to the aforesaid MOU, the plaintiffs executed release/relinquishment deeds as also a gift deed in favour of the defendants, but on their part, the defendants failed to transfer their right, title and interest in plot No. 116, Sector 59, Faridabad to the plaintiffs, despite their assurance that the same would be done within a week of registration of the release deed/relinquishment deeds. It is further alleged that the defendants also failed to pay the loan of about Rs. 1 crore which M/s Excellent Hosiery Products has raised from Bank of Rajasthan against another property which also had come to the share of the plaintiffs.

The plaintiffs filed CS(OS) 1048/2004 for declaring the said MOU cancelled/revoked/incapable of being performed/null and void and not legally enforceable. Consequential reliefs were also sought in the said suit. The defendants filed written statement affirming their readiness and willingness to perform their part of the obligation contained in the said MOU. Two applications, including an application for amendment of plaint, filed in the aforesaid suit having been dismissed by learned Single Judge of this Court, the plaintiff filed FAO(OS) 442/2007 which was disposed of by a Division Bench of this Court vide order dated 28.7.2008. The learned Single Judge, while dismissing IA Nos. 5891/2005 and 3310/2007 in CS(OS) 1048/2004, had observed that the suit was barred by limitation. The Division Bench while disposing of the appeal, made it clear that the observations were made while deciding an application under Order VI R. 17 CPC. It was further observed that it was open to the appellants/plaintiffs to withdraw the suit and file a fresh suit and when such a suit is filed it would be equally open to the respondent/defendant to take whatever legal plea were available to them, including the plea of limitation.

3. It is further alleged in the plaint that in September, 2003, plaintiffs came to know that defendant No.1 had since 1998 been prosecuting a suit titled Excellent Hosiery Product v. HSIDC in respect of plot No. 116, Sector 59, Faridabad, wherein he had challenged the enhanced charges claimed by HSIDC in respect of the above referred plot and had also challenged threatened resumption of the plot by HSIDC, on account of failure to pay enhanced charges. It is alleged that in July, 2004, plaintiff No.1 sought substitution in that civil suit and was actually substituted as such. The suit was later withdrawn by plaintiff No.1 under legal advice.

4. It is alleged that the market value of the aforesaid plot on the date of signing the MOU was Rs. 1 crore and the defendants are liable to pay that much amount to the plaintiff along with interest thereon at the rate of 12% per annum w.e.f. 11.09.2001. It is claimed that t