Kailash Gambhir, J.:—

By this application filed under Order 14 Rule 2(2) (b) moved by defendant nos. 1 to 4, they seek direction to treat issue no. 7 as a preliminary issue.

Addressing arguments on this application, Mr. Amit Chadha, learned Senior Advocate appearing for the defendant nos.1 to 4 submit that vide order dated 9.12.2005, this Court had framed the issues arising out of the pleadings of the parties and one of the issues framed was issue no. 7, onus of which was placed on the plaintiff to prove that the plaintiff was always ready and willing to perform its part of the contract. Counsel also submits that under Section 16 (c) of the Specific Relief Act 1963, the plaintiff has not merely to plead but prove the said fact in evidence that he has always been ready and willing to perform the contract. Counsel further submits that since in the present case, plaintiff has failed to prove issue no. 7 and on its failure to lead any evidence on the said issue, therefore, the plaintiff as per the mandate of Section 16 (c) of the Specific Relief Act 1963, would fail in the present suit on this sole ground. Counsel for the defendants also submit that on the failure of the plaintiff to lead any evidence on the said issue, the relief sought by the plaintiff for specific performance of the contract has become barred by law and once, the remedy of the plaintiff has become barred by law, then, as per the mandate of Order 14 Rule 2 (2) (b ) of the of Code of Civil Procedure, 1908, the issue no. 7 is required to be treated as preliminary issue, so that without dissipating the precious time of this Court any further, the present case itself can be disposed of, after hearing arguments on the issue no. 7. Counsel for the defendants further submit that Order 14 Rule 2(2) (b) mandates that if the case or any part thereof can be disposed of on an issue of law, which relates to a bar to the suit created by any law for the time being in force such issue may be treated as preliminary issue. Counsel also placed reliance on Order 15 Rule 3 of Code of Civil Procedure, 1908 to support his argument that where after framing of the issues the court is satisfied that no further arguments or evidence is required to be adduced on such issues which may be sufficient for the decision of the suit then in such like state, the discretion vests with the Court to proceed to determine such an issue and give its final verdict. The learned Senior Counsel also submits that from a bare reading of the plaint, it would be manifest that whatever amounts the defendants had paid under the Memorandum of Understanding (MOU), the plaintiff had taken post–dated cheques for the equivalent amount which was inclusive of the interest amount calculated @ 15% p.a. Therefore, in this regard the Counsel raised a contention that with the acceptance of the said post-dated cheques by the plaintiff, the plaintiff lost its right to claim specific performance of the Contract.

Counsel for the defendants placed reliance on the following judgments to support his arguments:

1. Man Kaur (DEAD) by LRS. V. Hartar Singh Sangha, (2010) 10 SCC 512

2. Bal Krishna & Anr V. Bhagwan Das( Dead) by LRS and others, (2008) 12 SCC 145

3. Manjunath Anandappa URF Shivappa V. Tammansa & othrs, (2003) 10 SCC 390

4. N.P. Thirugnanam (Dead) by LRS. V. Dr. R.Jagan Mohan Rao and others, (1995) 5 SCC115

This application has been strongly opposed by Mr. S P Kalra Senior Advocate appearing for the plaintiff. Mr. Kalra submits that issues in this matter were framed way back in December, 2005, and the plaintiff closed its evidence in affirmative on 4.3.2008. Counsel for the plaintiff further submits that the defendants in the past 4 years have only examined one witness, while the total number of witnesses sought to be examined by the defendants are just two in number. Counsel for the plaintiff also raised a contention that the purpose of filing the said application by the defendants at such an advance stage is only with