J.R. Midha, J.

I.A. Nos. 489/2011 and 3228/2011

1. The plaintiff has filed this suit seeking specific performance of the Agreement to Sell dated 10th November, 2010 and 18th November, 2010 in respect of the property bearing No. D-87, Defence Colony, New Delhi-110024.

2. The plaintiff has filed I.A.No. 489/2011 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure in which ex-parte interim order dated 18th January, 2011 was passed directing the defendants to maintain status quo with respect to the title and possession of the suit property till the next date of hearing. Defendants No. 1 and 2 have filed I.A.No. 3228/2011 under Order XXXIX Rule 4 of the Code of Civil Procedure for vacation of the ex-parte interim order dated 18th January, 2011. Both these applications have been heard together.

3. Plaintiff's Case

3.1. Defendants No. 1 and 2 are the joint owners of suit property bearing No. D-87, Defence Colony, New Delhi-110024. Defendants No. 1 and 2 are real brothers. Defendant No. 1 is the constituted attorney of defendant No. 2 who is residing in Canada. Defendant No. 3 is the mother of defendants No. 1 and 2.

3.2. Defendant No. 1 acting for himself and as constituted attorney of defendant No. 2, negotiated for sale of the suit property with the plaintiff and showed all relevant documents of ownership of the suit property as well as the power of attorney of defendant No. 2 in his favour to the plaintiff whereupon the plaintiff agreed to purchase the suit property for a sale consideration of Rs. 20,50,00,000/-. It was agreed by defendants No. 1 and 2 to have the suit property converted from leasehold to freehold and to execute the sale deed within 45 days of conversion. The ground floor of the suit property was in possession of a tenant and defendant No. 1 urged the plaintiff to negotiate and obtain vacant possession from the tenant at his own cost (No dates and particulars of negotiation and agreement are given in paras 4, 5 and 6 of the plaint).

3.3. On 10th November, 2010, a meeting was fixed in the office of defendant No. 1's lawyer at Delhi for payment of the earnest money. Defendant No. 1 expressed his inability to attend the meeting and conveyed to the plaintiff that defendant No. 3 would attend the meeting and was duly authorised by defendant No. 1 to receive the payment of earnest money. The meeting was attended by the plaintiff and defendant No. 3 on behalf of defendants No. 1 and 2. The plaintiff made the payment of Rs. 15,00,000/- to defendant No. 3, by means of cheque No. 697591 dated 10th November, 2010 for Rs. 10,00,000/- and cash of Rs. 5,00,000/- whereupon defendant No. 3 signed the receipt acknowledging the payment. The aforesaid cheque was drawn in favour of defendant No. 1.

3.4. Defendants No. 1 and 2 requested the plaintiff for additional payment of Rs. 35,00,000/- whereupon the plaintiff made further payment of Rs. 35,00,000/- by means of demand draft No. 006897 dated 18th November, 2010 to defendant No. 3 who executed the receipt dated 18th November, 2010 (No date and particulars of the request of defendant No. 1 and 2 for Rs. 35 Lacs are given the para 9 of the plaint).

3.5. Defendants No. 1 and 2 represented and assured the plaintiff that they have taken steps to have the suit property converted from leasehold to freehold. The plaintiff negotiated with the tenant occupying the ground floor of the suit property and arrived at an agreement with the said tenant for vacation. (No date and particulars of the representation and assurance of defendants No. 1 and 2 and the alleged agreement with the tenant have been given in paras 11 and 12 of the plaint.)

3.6. On 3rd January, 2011, the plaintiff's Director received an envelope addressed by defendant No. 3 containing a blank sheet of paper whereupon the plaintiff sent letter dated 3rd January, 2011 to defendant No. 3 which was received back undelivered on 10th January, 2011.

3.7. On 8th January, 2011, the plaintiff was informed by its bankers that a sum of Rs. 4