The judgment established that a determinable contract in a private commercial transaction may not be specifically enforced, and the party seeking specific performance must prove readiness and willingness to perform essential terms of the contract.

JUDGMENT

Mini Pushkarna, J. - The present petition has been preferred by the petitioner under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter called as 'Act'), against the respondents seeking urgent interim orders for protection to preserve the subject matter of arbitration i.e. property bearing no. K-1, Basaidarapur, Rajouri Garden, New Delhi.

2. As per the petitioner, the parties entered into a MOU dated 03.03.2022, in terms of which the property had to be developed by the petitioner at its own cost in lieu of being paid 30% of the sale proceeds. The petitioner paid an advance sum of Rs. 1 crore to the respondents and the remaining part of the initial deposit were ready and available with the petitioner. However, the respondents did not take the same and began to avoid the petitioner.

3. It is the case of the petitioner that the respondents have been deferring their obligation under false pretext. The petitioner has got information that instead of proceeding with their obligations under the MOU, the respondents are re-negotiating other deals with respect to the property in question. It is alleged that the respondents are in breach of the terms of MOU dated 03.03.2022.

4. It is seen from the record that the two respondents are spouses and are co-owners of the plot of land and in possession of the free hold property in question. The area of the plot of land is 757.50 sq yds. It is the case of the petitioner that being interested in engaging the services of a reputable builder, the respondents reached out to the petitioner and expressed a desire to collaborate in the construction and development of the project, which is subject matter of the present proceedings.

5. Thus, a Memorandum of Understanding dated 03.03.2022 (hereinafter called 'MOU') was entered into between the parties. The salient features of this MOU were that in consideration of getting 30% of total sale consideration of the resultant product and infrastructure facility, the petitioner would employ its technical expertise and resources and would bear the cost of construction and development of the property in question.

6. It was the understanding in the MOU that an initial amount of Rs. 1 crore would be paid by the petitioner to the respondents. The respondents had taken a loan against the security of the subject property from Yes Bank Ltd. and the balance payable was a sum of Rs. 40,291,247.61/-. It was the understanding that the sum payable to Yes Bank Ltd. would be paid by the petitioner and adjusted in the amounts payable as initial amounts to the respondents.

7. Thus, the petitioner has contended that the petitioner paid a sum of Rs. 1 crore as per understanding of the respondents, which amount was duly encashed by the respondents. As per the petitioner, it has at all times been ready and willing to pay the balance amount in accordance with the MOU. Infact, the petitioner had caused to be prepared, cheques for the balance amount payable by way of initial amount from its bankers. It is the case of the petitioner that at that point of time, the petitioner had adequate balance in its accounts to make the said payment.

8. As per the petitioner, it was the understanding that respondent no. 1 would personally visit the office of the petitioner to collect the said cheques. However, on being notified that the said cheques were ready, respondent no. 1 began to state that he was suffering from high blood pressure and that he had been advised to rest for some time.

9. It is, thus, submitted on behalf of the petitioner that the respondents avoided their obligations under false pretext. In the meanwhile, the partners of the petitioner firm got information that the respondents were re-negotiating other deals with other builders. On getting to know the plans on the part of the respondents, petitioner caused to be issued a letter dated 27.05.2022 through its advocate, calling upon the respondents to fulfil their part of the contract. In reply, respondents sent a