K. Ramamoorthy, J.
(1) The plaintiff has filed the suit for specific performance against defendants I and 2. The third defendant is a Cooperative Housing Society.
(2) According to the plaintiff on 28.11.1995 the plaintiff had entered into an agreement for purchasing the property bearing Flat No. 46, Desh Bandhu Co-operative Housing Society, I.P. Extension, Patparganj, Delhi, with defendants 1 and 2 for a consideration of Rs. 10 lakhs. According to the plaintiff a sum of Rs.l lakh was paid in cash. The balance to be paid within 90 days. On 24.2.1996 the plaintiff sent a registered notice ''calling upon defendants 1 and 2 to perform their part of the contract. The defendants sent a registered notice wherein they had falsely alleged that they intended to register all necessary documents in favor of the plaintiff on or before 28.2.1996 in the office of the Sub Registrar, Seelampur, Shahdara. On the basis of that registered notice the plaintiff was present in the office of the Sub-Registrar, Seelampur, Shahdara from 10.00 to 1.00p.m. But defendants 1 and 2 did not turn up. The plaintiff had a talk with the first defendant on phone on 28.2.1996 when the first defendant stated that the flat would be transferred to third party. According to the plaintiff defendants I and 2 had misled the plaintiff by stating that the membership with the Society cannot be transferred. Now the plaintiff learnt that the defendants 1 and 2 are trying to forfeit her advance. On this allegation the following relief is prayed for:
"It is respectfully prayed that this Hon''ble Court kindly be pleased to decree of specific performance in favor of the plaintiff and against the defendants 1 and 2 directing them to execute the sale deed of flat No. 46, Desh Bandu Co- operative Housing Society, I.P. Extension, Patparganj, Delhi, in favor of the plaintiff and handover the physical peaceful vacant possession of the said flat and in case the flat is not transferable refund the earnest money in double and pay damages or pass any other order or orders which may deem fit and proper."
(3) On the same allegation is No. 2084/96 under Order Xxxix Rules 1 and 2 has been filed by the plaintiff/applicant praying for injunction restraining defendants 1 and 2 from selling the flat No. 40, Desh Bandhu Cooperative Housings Society I.P. Extension, PatparGanj , Delhi, during the pendency of the suit and defendant No.3 be directed not to allow entry of any person in the said flat except the plaintiff members till the final disposal of the suit.
(4) Defendants 1 and 2 filed is No. 2632/96 under Order Xxxix Rule 4 CPC. In para 4 of the application the defendants I and 2 have given the following facts:
"That defendants 1 and 2 handed over photocopy of Allotment letter, possession letter, share certificates, No dues certificates and all other necessary documents to the plaintiff on 17.02.1996 which was required for the execution of necessary documents in favor of the plaintiff much in Advance of the last date for execution of the agreement to Sell dated 28.11.1995 namely 26.02.1996 and requested him to honour his agreement and acquire the possession of the flat by making payment of balance of Sale consideration. For this purpose defendants I and 2 made payment of Rs. 10,1008.00 on dated 20.2.1996 to clear loan amount outstanding against the flat and paid which entry fee of the plaintiff in the society to defendant No.3 as well as cleared house tax and Electricity dues and intimated these facts to the plaintiff on 25.2.1996 itself. plaintiff due to his own reasons, and having no funds to make payment of the remaining amount of Sale Consideration to defendant Nos 1 and 2 did not come forward. Though the time stipulated expired on 26.2.1996 and on 25.2.1996 plaintiff had already expressed his inability to arrange for the balance amount of Rs. 9 lacs yet only to allow grace to the plaintiff the defendant No 1 and 2 on 26.2.1996 sent a notice to the plaintiff asking him to make payment and get Sale deed executed by 28.2.1996. It is pertinent to mention here that defendants I and 2 attended the office of the Sub Registrar concerned at Seelampur on both the dates namely 26.2.1996 as well as on 28.2.1996 but the plaintiff did not turn up as he had no funds. Consequently, in terms of the agreement to sell, defendant No. 1 and 2 have forfeited the earnest money of Rs. I lacs and intimated the said fact to the plaintiff. The plaintiff has no right to interfere in the enjoyment of their property by defendants 1 and 2."
Defendants 1 and 2 prayed for the vacation of injunction:
(5) The applicant filed the agreement to sell. The applicant had undertaken to pay the balance amount within 30 days from the date of agreement.
(6) On 24.2.1996 the Applicant wrote to defendants 1 and 2 stating that he would pay the balance amount of Rs. 9 lakhs before 27.2.1996 subject to transfer of flat in his name and clearance from the Society in respect of the owner and handing over possession of the flat. The Applicant stated that" you may kindly note down that it came to my knowledge that the Society who has allotted this flat in your favor do not transfer their membership or the flat in the name of any other person and if it is so then you are not right-full owner of flat and title is not clear as it cannot be transfer in my name."
(7) The Applicant stated that the defendant nos I and 2 had misled the Applicant. In para 6 of the notice the Applicant states thus:
"That in these circumstances this deal cannot be finalised and accordingly as per the terms of agreement I am entitled to receive earnest money in double and you pay Rs. two lacs immediately or clear the title in my favour, get no objection certificate from the society and clear the dues of the society or any other financial institution".
(8) In the end of the notice again the Applicant stated as follows:
"In view of the above, I once again request you to perform your part of the contract and collect no objection certificate from the society in my favor and also collect no dues certificate from the society or no other financial institute and hand over me the physical possession of said flat as I am willing to perform my part of the contract before 27th Feb. 1996."
(9) Thus on 23.2.1996 the Applicant was not ready and willing to perform his part of the contract and he had a doubt about the title of defendants 1. and 2.
(10) The learned counsel for defendants 1 and 2 sent a reply dated 26.2.1996. At the end of the notice the learned counsel made it clear that defendants 1 and 2 were ready and willing to perform their part of the contract, which is in the following terms:
"Thus by this legal notice I call upon you to pay the balance amount to my client as stipulated in the "Agreement to Sell" dated 28th Nov. 1995 and to get all the necessary documents registered in your favor on or before 28th Feb. 1996 in the office of Sub-Registrar, Seelampur, Shahdara, Delhi and to take the vacant physical possession of the flat in question on 28th Feb. 1996 as my client has no malafide intention failing which my client has no option but to forfeit your earnest money and will be forced to cancel the said agreement."
(11) From para 4 of the application under order Xxxix Rule 4, it is asserted by the defendants that they were present before the Sub Registrar on 28.2.1996.
(12) On 29.2.1996 the plaintiff had instituted the suit. When the application came up for hearing, the learned counsel for the plaintiff submitted that he would make arrangement with the Society to get the name transferred in his name, if defendants 1 and 2 were willing to sell the property. The matter was adjourned and I took up IAs on 16.5.1996 for disposal. At that time, learned counsel for the defendants 1 and 2 had offered Rs. l,05,000.00 to the plaintiff even though the defendants 1 and 2 claimed forfeiture. Learned counsel for the plaintiff on instructions from the plaintiff stated that he was not willing to receive "the amount. Having regard to the facts and circumstances of this case, I am not able to persuade myself to hold that the plaintiff had been ready and willing to perform his part of the contract. The plaintiff ought to have been vigilant and approached the Society for necessary permission for the purchase of the property. Learned counsel for defendants 1 and 2 had offered to give back the money. Therefore, the plaintiff does not stand to lose anything. Right from 28.11.1995 after having paid Rs. one lakh the plaintiff had not taken any steps to get the sale deed registered. Therefore, the Applicant/plaintiff has not made out a prima facie strong case for the grant of injunction. The balance of convenience is in favor of defendants 1 and 2. The defendants 1 and 2 shall deposit Rs. l,05,000.00 in this court and the same shall be kept in a fixed deposit for a period of one year with automatic renewal every year till the disposal of the suit.
(13) is No. 2084/96 under Order Xxxix Rules 1 and 2 filed by the plaintiff is dismissed. is No. 2632/96 under Order Xxxix Rule 4 filed by defendants 1 and 2 is allowed. Post the matter for further proceedings on 20th November 1996.
