dismissal of suit for specific performance


I am defending a suit for specific performance of an alleged oral agreement for sale of land in proof of which plaintiff has furnished an MOU (which makes no reference to oral agreement at all). MOU further stipulates that a formal agreement will be entered into within one month. Suit alleges that defendant neglected to enter into formal agreement.

Plaintiff never demanded sale deed in his notice, but only execution of formal agreement.

Defendant in his notice, offered to execute Sale Deed against full payment, to treat MOU as formal agreement etc.

MOU is not stamped at all. Trial court & high court accepted his argument that no stamp duty was reqd on oral agreement and MOU is just a record of oral agreement, not an agreement itself.

NOW my question is, Can we file application under order 7 rule 11 for dismissal of suit claiming that : Sec 62 of Contract Act stipulates that original agreement need not be performed when agreed to be substituted by another one. In this case, alleged oral agreement was substituted by MOU which again was agreed to be substituted by formal agreement.

We can also claim that There was no cause of action because planitiff never demanded sale deed from defendant whereas suit is praying for sale deed, thus, he moved court without asking for same relief from defendant?

Plaintiff's evidence is already over, and now defendant's evidence is due. 

Pls advise.

Thank you very much




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