YAHOO PROPERTIES PVT. LTD Vs. BHAI MANJIT SINGH

JUDGEMENT

(1.) BY this application filed under Order 14 Rule 2(2) (b) moved by defendant nos. 1 to 4, they seek direction to treat issue no. 7 as a preliminary issue.

(2.) ADDRESSING arguments on this application, Mr. Amit Chadha, learned Senior Advocate appearing for the defendant nos.1 to 4 submit that vide order dated 9.12.2005, this Court had framed the issues arising out of the pleadings of the parties and one of the issues framed was issue no. 7, onus of which was placed on the plaintiff to prove that the plaintiff was always ready and willing to perform its part of the contract. Counsel also submits that under Section 16 (c) of the Specific Relief Act 1963, the plaintiff has not merely to plead but prove the said fact in evidence that he has always been ready and willing to perform the contract. Counsel further submits that since in the present case, plaintiff has failed to prove issue no. 7 and on its failure to lead any evidence on the said issue, therefore, the plaintiff as per the mandate of Section 16 (c) of the Specific Relief Act 1963, would fail in the present suit on this sole ground. Counsel for the defendants also submit that on the failure of the plaintiff to lead any evidence on the said issue, the relief sought by the plaintiff for specific performance of the contract has become barred by law and once, the remedy of the plaintiff has become barred by law, then, as per the mandate of Order 14 Rule 2 (2) (b ) of the of Code of Civil Procedure, 1908, the issue no. 7 is required to be treated as preliminary issue, so that without dissipating the precious time of this Court any further, the present case itself can be disposed of, after hearing arguments on the issue no. 7. Counsel for the defendants further submit that Order 14 Rule 2(2) (b) mandates that if the case or any part thereof can be disposed of on an issue of law, which relates to a bar to the suit created by any law for the time being in force such issue may be treated as preliminary issue. Counsel also placed reliance on Order 15 Rule

(3.) THE learned Senior Counsel also submits that from a bare reading of the plaint, it would be manifest that whatever amounts the defendants had paid under the Memorandum of Understanding (MOU), the plaintiff had taken post­dated cheques for the equivalent amount which was inclusive of the interest amount calculated @ 15% p.a. Therefore, in this regard the Counsel raised a contention that with the acceptance of the said post-dated cheques by the plaintiff, the plaintiff lost its right to claim specific performance of the Contract.