JAYANT NATH, J. - (1.)THIS is an application filed by defendant No. 2 under Order 7 Rule 11 CPC for dismissal of the above captioned suit. The plaintiff on 12 th April, 2011 entered into an agreement to sell with defendant No. 1 pertaining to Flat No. 268, Sector 13, MIG, Pocket A, Dwarka, New Delhi for a purchase value of Rs. 63,75,000/ -. The plaintiff is stated to have paid an advance of Rs. 3,00,000/ - to defendant No. 1. As defendant No. 1 has failed to proceed further, the present suit has been filed under the Specific Relief Act of the said agreement to sell.
(2.)ON 30.08.2011 an order was passed by this Court that subject to deposit of Rs 60.75 lacs in an FDR, the defendants will maintain status quo with regard to title and possession of the said flat. It is stated that the full amount in terms of the said order dated 30.08.2011 has not been deposited.
In the present application, defendant No. 2 states that he is the lawful owner and in possession of the suit property. It is stated that defendant No. 2 has acquired the rights and title to the suit property pursuant to various documents executed in her favour by defendant No. 3. Further, it is stated that defendant No. 2 was in need of finances for the business of her sons for which purpose she approached defendant No. 1 to sell her rights in the suit property. Defendant No. 2 agreed to sell the suit property to defendant No. 1 for a sale consideration of Rs. 51.50 lacs and an agreement to sell dated 05.03.2011 was executed between defendant No. 2 and defendant No. 1. It is stated that pursuant to Clause 2 of the agreement, defendant No. 1 did not pay the balance sale consideration of Rs. 45.50 lacs on or before 01.06.2011. Hence, it is stated that defendant No. 2 invoked her right under Clause 7 of the agreement and terminated the agreement to sell and forfeited the earnest amount of Rs. 6 lacs vide notice dated 25.7.2011. It is stated that the agreement to sell between the plaintiff and defendant No. 1 does not concern defendant No. 2 as defendant No. 2 has not executed the said agreement to sell. It is further stated that the agreement to sell between defendants No. 2 and defendant No. 1 does not confer any right on defendant No. 1 to execute an agreement to sell in favour of the plaintiff. In view of the above, it is stated that there is no privity of contract between defendants No. 2 and the plaintiff and hence, the suit is liable to be dismissed as there is no cause of action against defendant No. 2.

(3.)LEARNED counsel appearing for defendant No. 2 has relied upon the judgment of the Supreme Court in the case of Indu Kakkar vs. Haryana State Industrial Development Corporation Ltd. and Anr., AIR 1999 SC 296.