J.R. Midha, J.

The plaintiff has instituted this suit for specific performance of the agreement dated 16th March, 2010 in respect of property bearing No. E-166, Ashok Vihar Phase-I, Delhi-110052, hereinafter referred to as "the suit property".

2. On 16th March, 2010, the plaintiff entered into an agreement (Ex.P-1) with the defendant to purchase the suit property for a total consideration of Rs.8,60,00,000/-. The plaintiff paid earnest money of Rs.10,00,000/- to the defendant at the time of the agreement and agreed to pay the balance sale consideration on or before 30th September, 2010. Relevant portion of the agreement dated 16th March, 2010 is reproduced hereunder:

"2. That said property with its vacant possession has been agreed to be sold to the said purchase or his/their nominee's at the total consideration of Rs.8,60,00,000/- (Rupees Eight Crore Sixty lacs only).

3. The balance of amount of Rs.8,50,00,000/- (Rupees Eight Crore Fifty lacs only) is to be paid by the purchaser/transferee nominee within a period of 200 days i.e. on or before 30/9/10 from the date of this receipt or on the execution of relevant documents in the competent court in the name of the above said purchaser/Nominee.

xxx xxx xxx

6. If the purchaser fails to pay the balance money to (comply with the bargain) the earnest money shall be forfeited in favour of the seller."

(Emphasis supplied)

3. In the first week of September, 2010, the plaintiff instituted a suit for permanent injunction bearing Suit No. 535/2010 against the defendant before the Civil Judge, Rohini for restraining the defendant from selling, transferring or parting with the possession of the suit property on the averments that the defendant has defaulted in supplying the copies of the title documents to the defendant to enable him to take the loan from the bank despite the notice dated 12th August, 2010.

4. The aforesaid suit was listed before the Civil Judge, Rohini on 03rd September, 2010 when the Court issued the notice to the defendant for 07th September, 2010. On 07th September, 2010, the Civil Judge passed an interim order directing the defendant not to sell the suit property till the next date of hearing. On 12th October, 2010, the defendant filed an application under Order VII Rule 10 of the Code of Civil Procedure for return of the plaint. On 23rd May, 2011, the plaintiff withdrew the aforesaid suit for permanent injunction.

5. In May, 2011, the plaintiff instituted the present suit for specific performance against the defendant on the same averments that the plaintiff demanded the copies of the title documents from the defendant in order to seek the loan from the bank to purchase the suit property; the plaintiff wrote a letter dated 01st July, 2010 to HDFC Bank which was replied on 05th July, 2010; the plaintiff issued a letter dated 12th August, 2010 to the defendant demanding the copies of the title documents but the defendant did not supply the said documents to the plaintiff. Relevant portions of the plaint are reproduced hereunder:

"10. That at the time of signing of the above mentioned agreement/bayana receipt the plaintiff asked the defendant to supply the photocopies of the following documents as told by the bank to the plaintiff for the purpose of having loan from the bank for the purchase of the above mentioned property:-

a. Allotment Letter

b. Receipts of the payments to the DDA for the purchase of the plot.

c. Possession Letter

d. Lease Deed.

e. Sanctioned Building Plan

f. Completion Certificate.

g. Conveyance Deed.

11. That thereafter the plaintiff kept on demanding the above mentioned documents from the defendant through his dealer M/s J. K. Properties, Ashok Vihar in order to facilitate the loan from the bank for the purchase of the suit property. The plaintiff even wrote a letter to the HDFC bank dated 01.07.10 enquiring about the formalities for the loan which was duly replied by the HDFC bank vide reply dated 05.07.10. When the defendant did not pay heed to the oral r