Manmohan Singh, J.

1. By this order, I propose to decide the defendant's application under Order VII Rule 11 read with Section 151 CPC for rejection of the plaint.

2. The facts are that the plaintiffs have filed the present suit for Specific Performance of agreement to sell dated 27.06.2008 which was executed in respect of the property bearing No. D-104, Defence Colony, New Delhi.

3. The main contention of the defendant is that on a bare reading of the plaint along with the documents, the same demonstrates that the suit is without any cause of action and is barred by law in view of the various letters dated 14.11.2008, 04.12.2008, 15.01.2009 and 04.02.2009 by which the plaintiffs themselves have terminated the agreement to sell dated 27.06.2008 and their claim in the said letters was only in respect of the refund of the amount paid by them at the time of the agreement to sell alongwith interest and the alleged damages.

4. Mr. Sandeep Sethi, learned Senior counsel appearing on behalf of the defendant states that after having terminated the agreement and demand for refund of the amount, the present suit for specific performance of the agreement is without cause of action and is liable to be rejected, as in view of the plaintiffs' conduct, the suit for specific performance is not maintainable under Section 16(c) of the Specific Relief Act, 1963. In support of his submissions, Mr. Sethi has referred the following judgments:-

(i)

Mrs. Gopal Devi v. Mrs. Kanta Bhatia, AIR 1994 Delhi 349 : 1994(30) DRJ 1(DB)

(ii)

Vinod Seth v. Devinder Bajaj and Anr., JT 2010 (8) SC 66.

(iii)

Pukhraj D. Jain and others v. G. Gopalakrishna, (2004) 7 Supreme Court Cases 251

5. The relevant paras of the case of Mrs. Gopal Devi (supra) read as under:--

"8. In K. S. Sundaramayya v. K. Jag-deesan, also, the plaintiff was in appeal. There was an agreement to sell dated 31 January 1958 respecting certain property in Coimbatore. There was some correspondence between the parties which is not quite relevant for our purpose. On 22 May 1958, however, the plaintiff sent a notice through his advocate to the defendant and the concluding portion of the notice was as under (at page 86):-

"As there was no offer even in the telegram to deliver possession to my client of the property as per the terms of agreement, my client was not bound to finish the sale deed as stated in the telegram. You have thus committed default and broken the terms of the agreement. My client has been ever ready and willing to act up to the terms to the property by giving the title deeds for my client's inspection and by handing over possession to my client of the portion in your occupation, you are bound to return the sum of Rs. 4,000/- received by you as advance and also pay my client Rs. 4,000/- by way of damages.

You are therefore hereby called upon to pay my client the sum of Rs. 4,000/- received as advance and also Rs. 4,000/- by way of damages, within 3 days of receipt of this notice. Take notice that on default of compliance with this demand, steps will be taken through Court for recovery of the said sums."

One of the two counts on which the plaintiff was non-suited by the trial court was that he was not continuously ready and willing to perform the contract and he, therefore, could not obtain relief by way of specific performance. This view was upheld by the Madras High Court and with reference to the concluding portion of the notice reproduced above the court said that such a demand of return of advance paid was quite inconsistent with the subsistence of the contract, and it could not, therefore, be said that the plaintiff was ready and willing to perform his part of the contract. The court also noticed subsequent correspondence between the parties and in one of the letters to the defendant the counsel for the plaintiff had said:-

"My client hereby withdraws the notice he gave you for the refund of the advance and the compensation money as he is advised that he can obtain specific performance itself."