J U D G M E N T

ANUP JAIRAM BHAMBHANI J.

I.A. 6700/2022 (for impleadment) & I.A. 5376/2022 (for withdrawal)

Background The present suit was filed by the plaintiff claiming to be the intending purchaser of property bearing No. 12-C Friends Colony (West), New Delhi admeasuring 1870 square yards („subject property‟ for short) from the defendant vidé Agreement to Sell dated 10.05.2021 for a sale consideration of Rs.38.5 crores. In the plaint it was claimed that “… the plaintiff had fulfilled the entire transaction on 10th May 2021, and the possession of the property was taken by the plaintiff.” The case sought to be made-out was that the defendant was avoiding the execution of the sale deed in respect of the subject property in the plaintiff‟s favour and was trying to sell it to a third party. It was further stated in the plaint that the plaintiff had filed an earlier suit bearing CS(OS) No.122/2022, which was listed before a Co-ordinate Bench of this court on 28.02.2022; on which date the plaintiff was permitted to file the deficient court fee and the matter was posted to 07.03.2022. It was further the plaintiff‟s case that consequent upon filing of CS(OS) No.122/2022 the defendant approached the plaintiff; and the parties entered into Memorandum of Understanding dated 03.03.2022 („MoU‟ for short), whereby the defendant sought extension of time for getting the sale deed registered in favour of the plaintiff.

2. Subsequently, it is the plaintiff‟s case, that based upon the MoU he withdrew CS(OS) No.122/2022 as recorded in order dated 07.03.2022 which reads as under :

“I.A. No.3654/2022

1. This application has been filed praying for leave to withdraw the suit.

2. The application is allowed. The suit and the pending applications are dismissed as withdrawn.

3. As the suit has been withdrawn at the initial stage without the issuance of the summons, the Court Fee deposited by the plaintiff shall be refunded. Let the Registry prepare the Certificate of Refund in favour of the plaintiff for the said amount.”

3. It was further the plaintiff‟s case that the defendant also executed an Undertaking dated 07.03.2022 („Undertaking‟ for short) in witness of his commitment to get the sale deed registered in favour of the plaintiff by 14.03.2022, which however did not happen.

4. When the present suit first came-up before this court on 15.03.2022, the court fee affixed on the plaint was found to be deficient and it was also observed that there was no averment in the plaint as to the readiness and willingness of the plaintiff to perform his part of the contract as mandated under section 16(c) of the Specific Relief Act, 1963 („Specific Relief Act‟ for short). The plaintiff was accordingly directed to make-up the deficiency in court fee and to also file an affidavit in compliance of section 16(c) of the Specific Relief Act.

5. On 22.03.2022, the court was informed that the plaintiff had remitted the deficient ad-valorem court fee and had also placed on record an affidavit dated 21.03.2022 making requisite averments in line with section 16(c) of the Specific Relief Act.

6. It then transpired that the specific performance suit was in fact premised, not on Agreement to Sell dated 10.05.2021, but on MoU dated 03.03.2022. However, the copy of the MoU placed on record was found to be incomplete since some pages of the MoU were missing.

7. On the next date of hearing in the matter i.e., 23.03.2022, the original MoU dated 03.03.2022 and Undertaking dated 07.03.2022 were handed-up in court; and the same were retained to be placed on the physical file and to be added to the electronic copy of the court file.

8. Upon a first-blush scrutiny of the MoU and the Undertaking however, this court recorded the following in its order dated 23.03.2022 :

“6. On a purely prima facie view of the matter based upon the history of the litigation; and, especially on a preliminary but close scrutiny of MoU dated 03.03.2022 and Undertaking dated 07.03.2021, presented before this court in origi