A party seeking specific performance of a contract must demonstrate a willingness and ability to perform their own obligations under the contract.

ARUN BHANSALI, J.

1. Heard learned counsel for the parties.

2. With the consent of the parties, the matter has been finally heard.

3. The appellant is aggrieved against the rejection of his application under Order XXXIX, Rules 1 & 2, CPC, whereby his prayer to restrain the respondents Pawan Kumar, Mohd. Khijar Khan and Smt. Samim Ara from raising construction on the suit land and to maintain status quo was rejected holding that the plaintiff-appellant had no prima facie case in his favour.

4. Brief facts are that the plaintiff had filed a suit on 2-3-2007 seeking specific performance of contract dated 18-2-2006. However, during the pendency of the suit, a part of the suit property was sold to the three respondents and when they started raising construction on the suit property the application seeking temporary injunction was filed, which was opposed by the said purchasers inter alia on the ground that they were bona fide purchasers and the plaintiff has no right in the property as he had failed to perform his part of the contract entered into between him and his mother. The mother being absolute owner of the property and had right, title and interest in the property to transfer the same.

5. The mother - vender though impleaded in the suit was not impleaded as party to the temporary injunction application, who in her written statement opposed the plaint averments.

6. It is submitted by learned counsel for the appellant that the learned trial Court has not considered several important facts and circumstances of the case, inasmuch as, the fact that cheque was not dishonoured for insufficient fund, but was dishonoured on account of the same being stopped as the plaintiff wanted to pay the consideration by way of Fixed Deposit so as to see that the interest thereon would be utilised by the mother during her lifetime and there was enough material available on record to show that the appellant was ready and willing to perform his part of the contract.

7. It was alleged that the respondents taking benefit of the family dispute have got executed sale-deeds in their favour despite appellant publishing a notice in this regard in the newspaper. Ultimately, it was prayed that the order impugned be set aside and the respondents be restrained from raising construction on the suit property.

8. Responding to the submissions, learned counsel for the respondents contended that the appellant has no case in his favour and the trial Court has rightly found that no prima facie case exists. It was submitted that dishonour of the cheque for whatever reason is a fact and the appellant is seeking to explain the same by way of story, which has no truth. If the appellant had the intention to pay amount to the mother and get the sale deed executed in his favour, when the mother was not willing to accept the Fixed Deposit, he could have paid that amount thereafter. The sale-deed in their favour has been executed almost after two years and the matter could have been very well settled between the parties during the pendency of the suit. It was further submitted that the respondents are bona fide purchasers and have raised construction and are in possession on major part of the property transferred to them and only a small part of the suit property being 15 fits x 75 fits is lying vacant.

9. Reliance was placed on the judgment of Hon’ble Supreme Court in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryanha & Anr., AIR 2012 SC 206 to contend that agreement to sale, by itself does not create any right in the property.

10. I have considered the rival submissions made at the Bar.

11. It is an admitted fact that the agreement to sale executed between the appellant and his mother envisaged payment of Rs. 40 lacs regarding which a cheque was issued, which was dishonoured. Whether the cheque was dishonoured for insufficient fund or was stopped on account of the reasons indicated by the appellant is a matter of trial and whether based on those facts it could be said th