PRADEEP NANDRAJOG, J. ( 1 ) IA No. 1523/05 is plaintiff's application under Order 39 Rule 1 and 2 cpc praying that pending disposal of the suit, defendant no. 2 be restrained from transferring, alienating, mortgaging or selling property bearing no. D-1/24 (GF), Vasant Vihar, New Delhi. ( 2 ) SINCE plaintiff obtained an ex-parte ad-interim injunction, IA No. 3252/05 has been filed by defendant no. 2 invoking Order 39 Rule 4 and praying that the ex-parte injunction granted be vacated and IA. No. 1523/05 be dismissed. ( 3 ) IA No. 3245/05 under Order 7 Rule 11 has been filed by defendant no. 2 praying that plaint be rejected. ( 4 ) SUIT seeks decree for cancellation of a sale deed dated 30. 06. 2004 pertaining to the suit property executed by defendant no. 1 in favour of defendant no. 2. Decree of specific performance of an agreement to sell against defendant no. 1 is also prayed for. ( 5 ) PROPERTY in question is ground floor of D-1/24, Vasant Vihar, New delhi. ( 6 ) AS per the plaint, plaintiff's son is the owner of first floor of property no. D-1/24, Vasant Vihar, New Delhi having purchased the same after a prolonged litigation from defendant no. 1. ( 7 ) PLAINTIFF states that with a view that plaintiff's family owns the entire property, he and defendant no. 1 agreed that for a sale consideration of rs. 1 crore, defendant no. 1 would sell ground floor portion to the plaintiff. The bargain was evidenced by a written memorandum dated 18. 10. 2001. ( 8 ) PLAINTIFF paid Rs. 15 lacs to the defendant no. 1 pursuant to memorandum dated 18. 10. 2001. ( 9 ) ACCORDING to the plaintiff, defendant no. 1 was to stay in the ground floor portion till she lived and on her death, plaintiff was to take possession of the ground floor portion. But she sold the ground floor to the defendant no. 2. ( 10 ) DEFENDANT no. 1 has been proceeded ex parte. Defendant no. 2 is defending the sale deed dated 30. 06. 2004 which is under challenge in the present suit. ( 11 ) I take up for consideration at the first instance, I. A. No. 3245/05 for the reason if application succeeds, challenge to the sale deed would fail. Claim for specific performance would also fail. Defendant no. 2 is defending the sale deed dated 30. 06. 2004 which is under challenge in the present suit. ( 11 ) I take up for consideration at the first instance, I. A. No. 3245/05 for the reason if application succeeds, challenge to the sale deed would fail. Claim for specific performance would also fail. Only remedy of the plaintiff would be to recover damages against defendant no. 1 for breach of contract. ( 12 ) IT is stated in IA. No. 3245/05 that plaintiff had filed a suit for injunction seeking a decree against defendant no. 1 restraining her from selling the ground floor portion. The suit was subsequently withdrawn. Cause had accrued to seek a decree for specific performance when said suit was filed. Accordingly, present suit is barred under Order 2 Rule 2 CPC. ( 13 ) LEARNED counsel for defendant no. 2, Sh. Amit Chadha, Senior Advocate relied upon the following decisions:-i. 113 (2004) DLT 850 Vishal Anand Vs. Bimla Anand ii. AIR 2001 Delhi 107 Ashok Aggrawal Vs. Bhagwan Dass. iii. AIR 2001 Delhi 220 Kamal Kishore Saboo Vs. Nawabzada Humayun Kamal hasan Khan. iv. 2005 (5) SCC 548 N. V. Sriniwasa Murthy and Ors. Vs. Mariyamma. ( 14 ) THE memorandum of understanding stated to be in the nature of anagreement to sell is a hand written document. It reads as under:-"it is irrevocably agreed in between Mr. A. Chawla and Mrs. Satya A. Prakash that payments to Mrs Prakash by Mr. A. Chawla will be made as per schedule as under: 7. 5 lacs Paid till 11/05/2001 2. 5 lacs 3 lacs To be paid by 13/05/2002 0. 5 + 2 lacs (2. 5 lacs) To be paid by 07/06/2002 37. 5 lacs To be paid by June end i. e. 30/06 and 47. 5 lacs total in July (2. 5 lacs paid cheque ). Lease for two years. Repairing and white wash with 1st floor. " ( 15 ) SIMULTANEOUSLY, another document was executed between the plaintiff and defendant no. 1. The same reads as under:-PROPOSAL"conclusion - Ashok Chawla and S. P. Bhargava DATED " 18th October, 2001 i Floor to be ensured legally for absolute vacant possession --- 15th January, 2002. I, agreeing in present condition considering humanitarian grounds Mr. Ashok chawla agree to pay a lump sum price for Ground Floor. 1. The same reads as under:-PROPOSAL"conclusion - Ashok Chawla and S. P. Bhargava DATED " 18th October, 2001 i Floor to be ensured legally for absolute vacant possession --- 15th January, 2002. I, agreeing in present condition considering humanitarian grounds Mr. Ashok chawla agree to pay a lump sum price for Ground Floor. CONDITIONS and FAVOURS FROM HIS SIDE BEING AS UNDER a. The right to live in the house is restricted only to Mrs. Satya A. Prakash with one male attendant from family till she is alive. This needs legal formalisation to safe guard both side's interests and avoid any disputes at any stage. Strictly on 91st day of death of Smt. Satya A. Prakash who is the legal owner of the ground floor Mr. Ashok Chawla should get total possession, not leaving an inch of/on Ground Floor. B. Mrs. Satya A. Prakash has desired that: (i) Dining room at present be converted to a closed room though without provision for toilet. (ii) As a voluntary gesture the water boring will be redone to desired depth to make water supply easy for all. C. Both during discussion thought and agreed that changes to Drawing room will add to sanctions and complications hence be dropped instead, expenses on boring and face lifting of total house will add to Grace. This covers the deal of Ground Floor and signatures of all legal heirs be obtained in presence of Mr. Ashok Chawla and at least one witness of repute. This bears O. K. From advocate Sh. Jain. PAYMENTS:-CONDITION: Any portion within the house at Ground should be permitted to be under lock and key with Sh. Ashok Chalwa on/from the day payments are received by Mrs. Satya A. Prakash. As per separate agreement enclosed. 18/10/2001 15. 00 hrs. " ( 16 ) AT the outset, I may record that the manner in which parties have recorded their bargain is to say the least funny. ( 17 ) THE other day I came across a receipt evidencing payment of Rs. 7. 5 lacs, written on the inner side of a cigarette carton. ( 18 ) MONEY flowing in the parallel economy is of such magnitude that people did not even bother to give a legal and formal shape to their bargains. ( 17 ) THE other day I came across a receipt evidencing payment of Rs. 7. 5 lacs, written on the inner side of a cigarette carton. ( 18 ) MONEY flowing in the parallel economy is of such magnitude that people did not even bother to give a legal and formal shape to their bargains. ( 19 ) WHAT does the MOU state" ( 20 ) IT merely states that the plaintiff will make certain payments to defendant no. 1 as per schedule. Where is it written that the payments are towards the sale consideration" Where does the MOU state that it is earnest money paid for purchase of the ground floor" Where does the MOU state as to by what date sale would be finalized" ( 21 ) TURNING to the second document titled as PROPOSAL, it merely records that plaintiff would pay lump sum price for the ground floor. It permits defendant no. 1 to live in the ground floor till she is in th world of living. It records that on the 91st day of death of defendant no. 1, plaintiff would get possession of the ground floor. ( 22 ) WE then have, a receipt of record executed by the defendant no. 1 evidencing that she has received Rs. 2. 5 lacs from the plaintiff towards earnest money for sale of ground floor of property no. D-1/24, Vasant Vihar, New Delhi. ( 23 ) THE receipt reads as under:-"received with thanks a sum of Rs. 2,50,000/- (Rupees Two Lac Fifty Thousand Only)from Mr. Ashok Chawla vide Ch. No. 62195:226831 dated 15. 01. 2002 of CITIBANK as advance/earnest money towards the sales proceed of property at D-1/24 (Ground floor) Vasant Vihar, New Delhi-110057. Sd/-Mrs. Satya A. Prakash witnesses sd/-S. P. Bhargava. " ( 24 ) DEFENDANT no. 1 has sold the ground floor to defendant no 2 and has gone missing. She is not defending the suit. ( 25 ) IN view of the receipt executed by defendant no. 1, at this stage, it cannot be said that no conclusive bargain was struck between the plaintiff and defendant no. 1. Matter needs to be probed with aid of evidence. ( 26 ) AS regards the plea of defendant no. She is not defending the suit. ( 25 ) IN view of the receipt executed by defendant no. 1, at this stage, it cannot be said that no conclusive bargain was struck between the plaintiff and defendant no. 1. Matter needs to be probed with aid of evidence. ( 26 ) AS regards the plea of defendant no. 2 that the suit is barred under order 2 Rule 2, suffice would it be to record that as held in the decisions cited by learned counsel for defendant no. 2, if cause of action had accrued to sue for specific performance when suit for injunction was filed, no leave being obtained form the court concerned, suit seeking a decree for specific performance would be barred. ( 27 ) ONUS of establishing applicability of Order 2 Rule 2 is on defendant no. 2. ( 28 ) DEFENDANT no. 2 has not placed on record pleadings in the earlier suit filed by the plaintiff. ( 29 ) KEEPING in view the nature of the documents executed by defendant no. 1, it is apparent that she had a right to live in the ground floor till her death. No specific date was agreed between the parties by which date sale deed had to be executed. Thus, as of today, without recording evidence, it cannot be said that a right had accrued to the plaintiff to seek specific performance when earlier suit for injunction was filed. ( 30 ) I accordingly leave the issue open to be decided when evidence is led by the parties, whether Order 2 Rule 2 CPC hits the present suit. But, as on today, I dismiss I. A. No. 3245/05. ( 31 ) DEALING with plaintiff's application for interim injunction and application filed by defendant no. 2 seeking vacation thereof, three principles guide me to confirm or vacate the injunction. The first is prima facie case. The second is irreparable loss and injury and third balance of convenience. ( 32 ) THE unofficious nature of documents forming foundation of the claim relied upon by the plaintiff are as noted in para 14 and 15 above. The documents show an indefinite point of time which sale deed has to be executed. This coupled with the fact that defendant no. ( 32 ) THE unofficious nature of documents forming foundation of the claim relied upon by the plaintiff are as noted in para 14 and 15 above. The documents show an indefinite point of time which sale deed has to be executed. This coupled with the fact that defendant no. 1 had a right to live in the ground floor till her death requires a consideration of the issue whether at all a fair bargain was struck between the parties. Further, there is no material to show as to by what date plaintiff had to pay Rs. 1 crore to defendant no. 1. ( 33 ) AS per claim of the plaintiff, he has paid only Rs. 15 lacs to defendant no. 1. ( 34 ) DEFENDANT no. 2 has a registered sale deed in his favour. For the moment, there is no material to show that defendant no. 2 was not a bona-fide purchaser having notice of a prior agreement to sell in favour of the plaintiff. Defendant no. 2 has paid the entire sale consideration to defendant no. 1. ( 35 ) I am, therefore of the opinion that balance of convenience lies in favour of defendant no. 2 and that greater injury would be caused to defendant no. 2 if he is not permitted to deal with the suit property as owner thereof. ( 36 ) IA No. 1523/05 and IA No. 3252/05 are accordingly disposed of vacating the ex parte ad interim injunction dated 25. 02. 2005. ( 37 ) BUT it is directed that if defendant no. 2 sells the suit property, he would inform the plaintiff of said fact as also would file an affidavit in this court disclosing the name of the purchaser and the sale consideration. Further, in the sale deed executed, defendant no. 2 would record a recital informing the purchaser that the ground floor is a subject matter of the present suit. No costs.