A money-recovery claim based on a sale agreement with a non-owner was held time-barred and lacking a valid cause of action. The court rejected the claimed statutory charge and twelve-year limitation, applied the three-year limitation, and allowed the application to reject the plaint.
Plaint in C.S.No.211 of 2016 rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
This application is filed for rejection of plaint in C.S.No.211
of 2016 under Order XIV Rule 8 of the Original Sides Rules read with
Order VII Rule 11 (a) and (d) of Civil Procedure Code.
2.According to the respondent / plaintiff, the applicants / first
and third defendants approached him on the pretext that they are joint
owners of the property measuring an extent of 1.07 acres comprised in
S.No.31, Puzhal Village, Ambattur Taluk, Tiruvallur District. Accordingly,
they have entered into a sale agreement dated 06.03.2006 for selling their
property for a total sale consideration of Rs.20,00,000/- (Rupees Twenty
Lakhs Only). The first defendant has signed in the agreement for himself
and on behalf of the second defendant and received a sum of Rs.1,00,000/-
towards advance and acknowledged receipt in the sale agreement itself.
Thereafter, between 06.03.2006 and 20.03.2010, the first defendant has
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
received payments by way of cash and cheque to the tune of
Rs.17,10,000/- and thus, received a total sum of Rs.18,10,000/- out of the
sale consideration of Rs.20,00,000/-. Since the defendants were evading
execution of sale deed, the plaintiff issued a legal notice dated 08.03.2013
to all the defendants. On verification of the revenue records, to the shock
and surprise of the plaintiff, the property stood transferred in the name of
the second defendant and the defendants 1 and 3 are no way connected
with the said property. When he contacted the first defendant, he was
informed that property belongs to the second defendant alone and the first
and third defendants have stated that they would request the second
defendant and get the sale deed registered. Further, despite oral promises,
sale deed was not executed. The first and third defendants promised the
plaintiff that they will return a sum of Rs.18,10,000/- with interest at the
rate of 14% per annum from the date of each payment till the date of
repayment. Instead of settling the amount, the defendants 1 and 3 caused a
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
legal notice dated 01.05.2014 to the mother of the plaintiff in respect of
some other property which was sold to his mother. The mother of the
plaintiff sent a reply on 08.05.2014 and once again requested the
defendants to execute the sale deed as per the sale agreement dated
06.03.2006. Despite acknowledging receipt of payments in the sale
agreement itself, the second defendant was also very much aware of the
sale agreement and a party to the sale agreement. Therefore, they are liable
to refund the amount received by them to the plaintiff with interest @ 14%
per annum. Therefore, the plaintiff is entitled to file a suit for recovery of
money with interest against the defendants. The plaint was valued under
Section 22 of the Tamil Nadu Court Fees and Suits Valuation , 1955 and
the suit was filed for recovery of a sum of Rs.40,61,783/- with further interest @ 14% per annum.
shall be filed within a period of three years. The last payment was
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
allegedly made on 20.03.2010 and as such, the suit should have been filed
on or before 20.03.2013. But it has been inadvertently filed on 03.03.2016.
Therefore, the suit is hopelessly barred by limitation. Secondly, the second
defendant is the absolute owner of the property measuring an extent of
1.07 acres comprised in S.No.31, Puzhal Village, Ambattur Taluk,
Tiruvallur District, by virtue of sale deed dated 22.09.1986. He has not
entered into any sale agreement much less the suit document dated
06.03.2006 with the plaintiff to sell the property. The suit document dated
06.03.2006 is a fabricated document. Admittedly, there is no signature of
the second defendant in the sale agreement as it was said to have been
signed by the first defendant himself on behalf of the second defendant.
When the second defendant was not a signatory to the suit document dated
06.03.2006, it cannot be considered as an agreement to sell. The document
is fabricated by the plaintiff and in the absence of any privity of contract
between the owner and the purchaser, there will not be any cause of action
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
for filing the suit on the basis of the alleged sale agreement. The exchange
of notices will not create any cause of action. Therefore, the plaint has
been filed by creating an illusory cause of action and as such, the suit is
liable to be rejected for not disclosing any cause of action or without cause
of action. Therefore, the plaint is liable to be rejected under Order VII Rule
11(a) and (d) of Civil Procedure Code for no cause of action and barred by
law.
4. In support of his submission, the learned counsel appearing
for the applicants / defendants 1 and 3, relied on the following judgments:
a) Judgment of this Court in
A.M.KOTHANDARAMASAMY KOIL
THIRUPUVANAM VS. VAIRAM AND OTHERS
[2012 (1) CTC 542]
b) Judgment of this Court in
DR.L.RAMACHANDRAN VS. K.RAMESH AND OTHERS [2015 (5) CTC 629]
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
c) Judgment of the Hon'ble Supreme Court in
BHARGAVI CONSTRUCTIONS AND ANOTHER
VS. KOTHAKAPU MUTHYAM REDDY AND OTHERS [2017 (5) CTC 775]
d) Judgment of this Court in
S.K.RAMASAMY AND ANOTHER VS.
S.S.CHELLAKUTTI [2016 (2) MWN (CIVIL) 61]
e) Judgment of this Court in K.SAVITHIRI
AND ANOTHER VS. L.RAMASAMY AND
OTHERS [2017 (2) LW 994]
(f) Judgment of the Hon'ble Supreme Court in
FATEHJI AND COMPANY AND ANOTHER VS.
L.M.NAGPAL AND OTHERS [2015 (8) SCC 390]
respondent/ plaintiff would contend that the suit is within limitation. As contended by the applicants / defendants 1 and 3, Article 23 of the
Limitation Act, 1963, will not be applicable, but Article 62 of the Limitation Act, 1963, would be attracted for the transactions. Once there is
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
a sale agreement and money was received towards the sale of property,
statutory charge would be created under Section 55(6)(b) of the Transfer of
Property Act, 1882. In that case, refund of advance amount is covered
under Article 62 of the Limitation Act, 1963 and therefore, limitation
period is 12 years and the suit is well within limitation. The question of
limitation being an issue of fact and law, it has to be tried and decision
shall be taken only after trial. Therefore, the plaint is not liable to be
rejected. Further, he would contend that legal notice was issued by him to
the applicants as well as to the second defendant in the suit on 08.03.2013.
However, in spite of receipt of the same, they have not chosen to reply.
Therefore, to enforce payment of money secured, the suit for recovery of
money is filed. Therefore, the averment that there is no cause of action for
filing the suit, cannot be sustained.
respondent / plaintiff relied on the following judgments:
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
(a) Judgment of this Court in K.SHANMUGAM AND ANOTHER VS. C.SAMIAPPAN AND OTHERS [2013 (6) CTC 28]
(b) Judgment of this Court in
P.MUTHUSAMY VS. K.ARUMUGAM AND
OTHERS [2016 (6) CTC 740]
(c) Judgment of the Hon'ble Supreme Court in
DELHI DEVELOPMENT AUTHORITY VS.
SKIPPER CONSTRUCTION CO. (P) LTD., AND
OTHERS [2000 (1) CTC 507]
(d) Judgment of the Hon'ble Supreme Court in
CHOTANBEN AND ANOTHER VS. KIRITBHAI
JALKRUSHNABHAI THAKKAR AND OTHERS
[2018 (5) MLJ 588 (SC)]
(e) Judgment of this Court in ELECTRONIC MACHINE TOOLS LIMITED VS. POWER ENGINEERS, RAMANATHAPURAM AND ANOTHER [2011 (6) MLJ 929]
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
perused the materials available on record.
been preferred under Section 22 of the Tamil Nadu Court Fees and Suits Valuation Act 1955 for recovery of money for a sum of Rs.40,61,783/- on the principal amount of Rs.18,10,000/- along with interest @ 14% per annum. On the face of it, the suit was not filed for refund of advance amount, but a mere suit for recovery of money. The cause of action for the suit filed, as stated in the plaint, reads as follows: “11.The cause of action arose at Vyasarpadi, Chennai on 6.3.2006 when the defendants entered into a Sale agreement with the plaintiff at his residence stated in the plaint and defendants also residing in Chennai as stated in the plaint & received a sum of Rs.1,00,000/and subsequently received a sum of Rs.17,10,000/- on various dates, in all Rs.18,10,000/- from 8.3.2006 to 20.3.2010 and on 8.3.2013 when the plaintiff issued legal notice to the defendants and on 1.5.2014 when the defendants issued notice to the plaintiff's mother and on 8.5.2014 when the plaintiff's mother sent a reply to the said notice and requested the defendants to execute the
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
sale deed and subsequently all within the jurisdiction of this Hon'ble Court.“
The cause of action also does not state that the suit was filed for refund of
advance amount paid towards sale consideration.
Therefore, the contention that the cause of action arose on the basis of the
sale agreement entered with the stranger, without the signature of the title
holder is not sustainable. A further perusal of the plaint document nos.4
and 5 leads us to an impression that the plaintiff has attempted to create an
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
illusory cause of action for the legal notice issued by the defendants. The
Hon’ble Supreme Court in T.ARIVANANDHAM VS. T.V.SATYAPAL
[1977 SC 295] has held as under:-
“......We have not the slightest hesitation in
condemning the petitioner for the gross abuse of the
process of the court repeatedly and unrepentantly
resorted to. From the statement of the facts found in the
judgment of the High Court, it is perfectly plain that the
suit now, pending before the First Munsif's Court,
Bangalore, is a flagrant misuse of the mercies of the law
in receiving plaints. The learned Munsif must remember
that if on a meaningful-not formal-reading of the plaint
it is manifestly vexatious, and meritless, in the sense of
not disclosing a clear right to sue, be should exercise his
power under Or. VII r. 1 1 C.P.C. taking care to see that
the ground mentioned therein is fulfilled. And, if clever,
drafting has created the illusion of a cause of action, nip
it in the bud at the first hearing by examining the party
searchingly under Order X C.P.C. An activist Judge is the
answer to irresponsible law suits.”
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
A perusal of the plaint document no.3 reveals that defendants 1 and 2 have
entered into a sale agreement of the property situated in S.No.31, Puzhal
Village, Ambattur Taluk, Tiruvallur District, measuring an extent of 1.07
acres on 06.03.2006, which caused upon the defendants to execute the sale
deed within a period of seven days. The said notice was issued on
08.03.2013. However, the plaint was submitted only on 03.03.2016. As per
plaint document no.3, last payment was made on 20.03.2010. As per
Article 23 of the Limitation Act, limitation is three years from the date on
which the money was paid. Even assuming that legal notice gives rise to
cause of action, the plaint should have been filed within three years.
Therefore, the suit for recovery of money, as such, is barred by limitation.
CTC 629] had held that the plaint can be rejected, if it is exfacie barred by
limitation.
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
second defendant as “K.V.Dhuruvasala”, whereas in the plaint, the name
of the second defendant is mentioned as “K.V.Thiruvasagar”. Plaint
document no.4 issued on behalf of the second defendant also mentioned
his name as “K.V.Dhuruvasala”. In the reply notice dated 08.05.2014,
plaint document no.5, the name of the second defendant was mentioned as
“K.V.Dhuruvasala”. Despite the same, the plaintiff has chosen to sue in the
name of “K.V.Thiruvasagar” who has no connection to the sale agreement.
Further, plaint document no.4 deals with the sale of property that had taken
place between the plaintiff and the first defendant, for the property
comprised in Old S.No.584, Patta No.2245, New S.No.584/2, measuring
an extent of 1.68 acres of land in Madhavaram Village, Ambattur Taluk,
Thiruvallur District. However, in the present case on hand, the plaintiff has
dealt with the property comprised in S.No.31, Puzhal Village, Ambattur
Taluk, Tiruvallur District, measuring an extent of 1.07 acres. The reply
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
notice vide plaint document no.5 creates a doubt in the minds of the Court
that it has been issued with an intention to create illusory cause of action,
which cannot be ruled out. Therefore, it shall be construed that the plaint
does not disclose valid cause of action.
“12..... A mere glance of the description of suit properties mentioned in the plaint would go to show that
in the property description three survey numbers admeasuring 5 acre 64 cents have been shown as suit properties. No where in the plaint it has been specifically
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
stated about the breadth and length of alleged construction and also about survey numbers, in which the alleged construction is in existence. Therefore, it is quite clear that except survey numbers and its extent, no proper description has been given with regard to identity of the construction alleged to have been put up by the defendants 1 to 4.
....
18. As per order 7 Rule 3 of the Code of Civil
Procedure, 1908 if a suit has been instituted in respect of
an immovable property the concerned plaint should
contain necessary description so as to identify the same
and further as per section 39 of the Specific Relief Act,
1963 a decree of mandatory injunction should be granted
only when the same is capable of being executed. In the
instant case, as stated in many places, no proper
description has been given with regard to the alleged
construction. To put it in short, in the present case only
the alleged construction is the suit property. But in the
plaint, it has been simply mentioned three survey
numbers and its total extent, without mentioning the
construction alleged to have been put up by the
defendants 1 to 4. Therefore, it is easily discernible that
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
the plaint filed in Original Suit No.4 of 2004 does not
contain proper description of suit property as
contemplated under Order 7 Rule 3 of the Code of Civil
Procedure, 1908. By way of eschewing the defects which
are in existence in the plaint, even if a decree of
mandatory injunction is granted in favour of the
appellant/plaintiff, the same cannot be executed nor
enforced as contemplated under section 39 of the Specific
Relief Act, 1963. Therefore, it is quite clear that the
plaint filed in Original Suit No.4 of 2004 is defective. “
13. Likewise, in the judgment relied on by the learned counsel
for the applicants / defendants 1 and 3 in DR.L.RAMACHANDRAN VS.
K.RAMESH AND OTHERS [2015 (5) CTC 629] it has been held as
under:
“26.In terms of Order 7 Rule 11 (d) CPC, the Plaint shall be rejected where the suit appears from the statement in the Plaint to be barred by any law. The scope of Rule 11 of Order 7 CPC has been explained in various decisions and the legal principle deducible are that, if the Plaint does not disclose the cause of action or is bared by law; can be
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
rejected where the litigation was utterly vexatious and abuse of process of Court ; if any one of the conditions mentioned under the Rule were found to exist, thus saving the defendants onerous and hazardous task of contesting a non maintainable suit during the course of protracted litigation and where the suit was instituted without proper
authority. Thus, the provision of Order 7 Rule 11 PC being
procedural is designed and aimed to prevent vexatious and
frivolous litigation. The plaint is liable to be rejected on the
ground of limitation only where the suit appears from the
statements in the plaint to be barred by any law and the
law within the meaning of clause (d) of Order 7 Rule 11
CPC, shall include law of limitation as well.
27.Thus, considering the averments in the instant
case and by considering as to whether the Plaint is liable to
be rejected under clause (d) of Order 7 Rule 11, the only
conclusion that could be arrived at is that the plaint was
barred by limitation......”
BHARGAVI CONSTRUCTIONS AND ANOTHER VS. KOTHAKAPU
MUTHYAM REDDY AND OTHERS [2017 (5) CTC 775] relied on by
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
the learned counsel for the applicants / defendants 1 and 3, it is observed as
under:
“21) In other words, his submission was that the
expression “law” occurring in clause(d) of Rule 11 of
Order 7 should be construed liberally so as to include
therein not only any “Act" which is admittedly a “law”
made by the legislature but also include therein a "a
decision of Supreme Court ".
30.We also do not agree with the submissions of
Mr. Adinarayana Rao, learned senior counsel for the
respondents when he urged that firstly, the expression
"law" occurring in clause(d) of Rule 11 Order 7 does not
include the "judicial decisions" and clause (d) applies only
to bar which is contained 13 in “the Act” enacted by the
Legislature; and Secondly, even if it is held to include the
“judicial decisions”, yet the law laid down in the case of
State of Punjab (supra) cannot be read to hold that the
suit is barred. Both these submissions, in our view, have
no merit.
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
the “judicial precedents" (see at page 962). Similarly, the expression "law” defined in Jowett’s Dictionary of English Law (Third Edition Volume-2, (pages 1304/1305) says that "law is derived from judicial precedents, legislation or from custom. When derived from judicial precedents, it is called common law, equity,
or admiralty, probate or ecclesiastical law according to
the nature of the Courts by which it was originally
enforced".
32) The question as to whether the expression
"law" occurring in clause(d) of Rule 11 of Order 7 of the
Code includes "judicial decisions of the Apex 14 Court"
came up for consideration before the Division Bench of
the Allahabad High Court in Virender Kumar Dixit vs.
State of U.P., 2014(9) ADJ 1506. The Division Bench
dealt with the issue in detail in the context of several
decisions on the subject and held in para 15 as under:
“15. Law includes not only legislative enactments but also judicial precedents. An authoritative judgment of the Courts including higher judiciary is also law.”
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
F.Z.C. & Anr. (unreported decision in Civil Application (OJ) No.144 of 2016 in Admiralty Suit No.10 of 2016 decided on 22.04.2016). The learned Single Judge examined the issue and relying upon the decision of the Allahabad High Court quoted supra held in Para 53 as
under:
“53. In the light of the above discussion, in the
considered view of this Court, it cannot be said that the
term “barred by any law” occurring in clause(d) of Rule
11 of Order 7 of 15 the Code, ought to be read to mean
only the law codified in a legislative enactment and not
the law laid down by the Courts in judicial precedents.
The judicial precedent of the Supreme Court in Liverpool
& London Steamship Protection and Indemnity
Association vs. M.V. Sea Success, 2004(9) SCC 512 has
been followed by the decision of the Division Bench in
Croft Sales & Distribution Ltd. vs. M.V. Basil, 2011(2)
GLR 1027. It is, therefore, the law as of today, which is
that the Geneva Convention of 1999 cannot be made
applicable to a contract that does not involve public law
character. Such a contract would not give rise to a maritime claim. As discussed earlier, the word ‘law’ as occurring in Order 7 Rule 11(d) would also mean judicial
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
precedent. If the judicial precedent bars any action that would be the law.”
Sarkar & Ors. Vs. Usha Ramrao Bhojane, 2017 SCC
OnLine Bom 3440. The learned Judge placed reliance on
the decisions of the Allahabad High Court in Virender
Kumar Dixit vs. State of U.P. (Supra) and the Gujarat
High Court in Hermes Marines Limited (supra) and held
as under:
“18…………….The law laid down by the
highest court of a State as well as the Supreme Court, is
the law. In fact, Article 141 of the Constitution of India
categorically states that the law declared by the Supreme
Court shall be binding on all Courts within the territories
of India. There is nothing even in the C.P.C. to restrict
the meaning of the words “barred by any law” to mean
only codified law or statute law as sought to be
contended by Mr. Patil. In the view that I have taken, I
am supported by a decision of the Gujarat High Court in
the case of Hermes Marines Ltd..………
..........................”
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
“19. One must also not lose sight of the purpose and intention behind Order VII Rule 11(d). The intention appears to be that when the suit appears from the statement in the plaint to be barred by any law, the Courts will not unnecessarily protract the litigation and proceed with the hearing of the suit. The purpose clearly appears to be to ensure that where a Defendant is able to establish that the Plaint ought to be rejected on any of the grounds set out in the said Rule, the Court would be duty bound to do so, so as to save expenses, achieve expedition and avoid the court’s resources being used up on cases which will serve no useful purpose. A litigation, which in the opinion of the court, is doomed to fail would not further be allowed to be used as a device to harass a Defendant…………………..” 35) Similarly, issue was again examined by the High Court of Jharkhand(Single Judge) in Mira Sinha & Ors. Vs. State of Jharkhand & Ors., 2015 SCC OnLine Jhar.4377. The learned Judge, in paragraph 7 held as under:
“7. In the background of the law laid down by the Hon’ble Supreme Court, it is apparent that Order VII Rule 11(d) C.P.C. application is maintainable only when
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
the suit is barred by any law. The expression “law” included in Rule 11(d) includes Law of Limitation and, it would also include the law declared by the Hon’ble Supreme Court………”
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
application of Section 62 of the Limitation Act does not arise in this case. If the amount was charged upon the property, the respondent/plaintiff would not have asked for the alternative relief of creation of charge over the
property.
“29. Mr.Nariman, learned Senior Counsel, has also contended that the counter-claims filed before the learned arbitrator is an elaboration of the amount stated
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
in the notice and, in fact, it is an amendment of the claim of the respondent which deserved to be dealt with by the learned arbitrator. In this context, we may refer with profit to the ruling in K.Raheja Constructions Ltd., v. Alliance Ministries [1995 Supp (3) SCC 17] wherein
the plaintiff had filed a suit for permanent injunction
and sought an amendment for grant of relief of specific
performance. The said prayer was rejected by the learned
Trial Court. A contention was canvassed that the
appellant had not come forward with new plea and, in
fact, there were material allegations in the plaint to
sustain the amendment of the plaint. The Court observed
that having allowed the period of seven years to elapse
from the date of filing the suit, and the period of
limitation being three years under Article 54 of the
Schedule to the Limitation Act, 1963 any amendment on
the grounds set out, would defeat the valuable right of limitation accruing to the respondent. The said principle has been reiterated in South Konkan Distilleries v. Prabhakar Gajnan Naik [(2008) 14 SCC 632] and Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit v. Ramesh Chander [(2010) 14 SCC 596].
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
laying down some basic principles for considering the amendment, the Court has stated that as a general rule the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the
date of application.
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
relief of refund of advance amount cannot have legs to stand because the Trial Court itself has found in Paragraph 13 of its Judgment that the plaintiff had failed to substantiate his claim as contemplated under Section 101 of the Indian Evidence Act. On the other
hand, the defendants have substantiated their case as
envisaged under Sections 102 and 103 of the Indian
Evidence Act. Therefore, the alternative relief cannot be
maintained and in this regard, this Court is of the
considered view that the Judgment and Decree of the
First Appellate Court with reference to the granting of
alternative relief is not sustainable in law and therefore,
liable to be set aside. Accordingly, the Substantial
Question of law No.(iii) is also answered against the
respondent/plaintiff. “
16. In the judgment of this Court in K.SAVITHIRI AND
ANOTHER VS. L.RAMASAMY AND OTHERS [2017 (2) LW 994] relied on by the learned counsel for the applicants / defendants 1 and 3, it
is observed as under:
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
“23.Similarly, in Delhi Development Authority v. Skipper Construction Co.(P) Ltd., and others (cited supra), the Hon'ble Supreme Court has held that in the
absence of a contract to the contrary, the buyer will have
a charge on seller's interest in the property, which is the
subject matter of the sale agreement insofar as the
purchase money and interest on such amount are
concerned, unless the buyer has improperly declined to
accept delivery. It has bee further held that charge under
Section 55(6)(b) is a statutory charge and differs from a
contractual charge.”
17. In the judgment of the Hon'ble Supreme Court in
FATEHJI AND COMPANY AND ANOTHER VS. L.M.NAGPAL AND
OTHERS [2015 (8) SCC 390] relied on by the learned counsel for the
applicants / defendants 1 and 3, it is observed as under:
“8.The plaintiffs averred in the plaint that the last and final cause of action accrued and arose to them
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
after August 1991 when the defendants succeeded in hiding themselves and started avoiding the plaintiffs and the cause of action being recurring and continuous one, they filed the suit on 29.4.1994. As already seen the original cause of action became available to the plaintiffs
on 2.12.1973, the date fixed for the performance of the
contract and thereafter the same stood extended till
1.2.1977 as requested by the defendants. Though the
plaintiffs claimed that oral extension of time was given,
no particulars as to when and how long, were not
mentioned in the plaint. On the other hand even after
knowing the dishonest intention of the sons of the
second defendant with regard to the suit property in the
year1985, the plaintiffs did not file the suit immediately.
The suit having been filed in the year 1994 is barred by
limitation under Article 54 of the Limitation Act. “
the cause of action has been mentioned in the plaint or not and there is no
need to decide as to whether the cause of action arose in the plaint is true
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
and correct, will not apply to this case. The sale agreement, for which the
suit is filed, is between a stranger. On the face of it, it does not constitute a
valid agreement to the title holder. As such, no charge could be created on
the suit property. Since the agreement was not entered into between the
real owner, it will not give rise to any cause of action. It is not the case
whether the cause of action is true or not. But it is a case whether there is
cause of action or no cause of action. In the present case, there is no cause
of action on the basis of the suit document. Therefore, the said judgment is
not applicable.
18. The Hon’ble Supreme Court in T.ARIVANANDHAM
VS. T.V.SATYAPAL [1977 SC 295] has held as under:-
“......We have not the slightest hesitation in condemning the petitioner for the gross abuse of the
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law
in receiving plaints. The learned Munsif must remember
that if on a meaningful-not formal-reading of the plaint
it is manifestly vexatious, and meritless, in the sense of
not disclosing a clear right to sue, be should exercise his
power under Or. VII r. 1 1 C.P.C. taking care to see that
the ground mentioned therein is fulfilled. And, if clever,
drafting has created the illusion of a cause of action, nip
it in the bud at the first hearing by examining the party
searchingly under Order X C.P.C. An activist Judge is the
answer to irresponsible law suits.”
19.The judgments relied on by the respondent / plaintiff to the
effect that the averments in the plaint are sufficient to decide as to whether
the cause of action has been mentioned in the plaint or not and there is no
need to decide as to whether the cause of action arose in the plaint is true
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
and correct, will not apply to this case. The sale agreement, for which the
suit is filed, is between a stranger. On the face of it, it does not constitute a
valid agreement to the title holder. As such, no charge could be created on
the suit property. Since the agreement was not entered into between the
real owner, it will not give rise to any cause of action. It is not the case
whether the cause of action is true or not. But it is a case whether there is
cause of action or no cause of action. In the present case, there is no cause
of action on the basis of the suit document. Therefore, the said judgment is
not applicable.
20.In view of the above finding, the judgment of this Court in
K.SHANMUGAM VS. C.SAMIAPPAN [2013 (6) CTC 28] relied on by the learned counsel for the respondent / plaintiff will not apply to the
present case on hand.
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
amount given to the lawful owner to attract Article 62 of the Limitation
Act, 1963. But it is a suit for recovery of money from the third party.
Therefore, the period of limitation cannot be construed as 12 years. The
same ratio has been followed in the judgment of this Court relied on by the
learned counsel for the respondent / plaintiff in P.MUTHUSAMY AND
K.ARUMUGAM AND OTHERS [2016 (6) CTC 740]. Hence, this
judgment is also not applicable to the case on hand.
22. The judgment of the Hon'ble Supreme Court in DELHI
DEVELOPMENT AUTHORITY VS. SKIPPER CONSTRUCTION
CO.(P) LTD., AND OTHERS [ 2000 (1) CTC 507] relied on by the
learned counsel for the respondent / plaintiff is also on the basis of a valid
sale agreement, wherein statutory charge was created under Section 55
(6)(b) of the Transfer of Property Act, 1882. Whereas, in the present case
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
on hand, the suit document does not constitute a valid sale agreement and
no charge could be created and as such, the limitation period cannot be
calculated under Article 62 of the Limitation Act. Therefore, this judgment
is also not applicable to the case on hand.
23 Likewise, the judgment of the Hon’ble Supreme Court
relied on by the learned counsel for the respondent / plaintiff in
CHOTANBEN AND ANOTHER VS. KIRITBHAI
JALKRUSHNABHAI THAKKAR AND OTHERS [2018 (5) MLJ 588
(SC)] for the proposition that the plaint shall be read as a whole for
deciding Order VII Rule 11(d) of Civil Procedure Code for rejection of
plaint and the plea taken in the written statement or in the application
cannot be a basis to reject the plaint.
averments made in the plaint by itself unequivocally disclose that the
plaintiff knowing well that the second defendant is the owner, entered into
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
an agreement with the first defendant, who is a stranger. The very basis on
which the cause of action said to have arisen is the sale agreement, which
on the admission of the plaintiff in the plaint averments exfacie invalid and
unenforceable. The suit is valued under Section 22 of the Tamil Nadu
Court Fees and Suits Valuation Act for recovery of money. The relief
sought for also is only recovery of money. The cause of action said to be
for recovery of money. As per the averments of the plaint, the suit is filed
far beyond the period of limitation. It is a purest question of law and does
not involve any question of fact to put it to trial. The case on hand is
squarely covered by the judgment of this Court in
DR.L.RAMACHANDRAN's case (cited supra). Therefore, it is
unnecessary to force the defendants to undergo the ordeal of trial and put them to mental torture for the above futile claims.
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
barred by limitation and accordingly, the plaint in C.S.No.211 of 2016
stands rejected and the application is allowed.
20 / 08 / 2020
TK
APPLICATION NO.2164 OF 2017 IN C.S.NO.211 OF 2016
M.GOVINDARAJ, J.
TK
APPLICATION NO.2164 OF 2017
IN C.S.NO.211 OF 2016
20 / 08 / 2020
3 issues framed by the court
Was the money-recovery suit barred by the three-year limitation under Article 23?
Could an agreement with a non-owner create a statutory charge attracting Article 62's twelve-year limitation?
Did the plaint disclose a valid cause of action against the defendants?
Colour shows how this judgement treated each authority
A.M.KOTHANDARAMASAMY KOIL THIRUPUVANAM VS. VAIRAM AND OTHERSRelied on¶110
[2012 (1) CTC 542]
DR.L.RAMACHANDRAN VS. K.RAMESH AND OTHERSApplied¶246
[2015 (5) CTC 629]
BHARGAVI CONSTRUCTIONS AND ANOTHER VS. KOTHAKAPU MUTHYAM REDDY AND OTHERSRelied on¶127
[2017 (5) CTC 775]
S.K.RAMASAMY AND ANOTHER VS. S.S.CHELLAKUTTIRelied on¶158
[2016 (2) MWN (CIVIL) 61]
K.SAVITHIRI AND ANOTHER VS. L.RAMASAMY AND OTHERSReferred¶182
[2017 (2) LW 994]
FATEHJI AND COMPANY AND ANOTHER VS. L.M.NAGPAL AND OTHERSRelied on¶187
[2015 (8) SCC 390] · Who else cites this
K.SHANMUGAM AND ANOTHER VS. C.SAMIAPPAN AND OTHERSDistinguished¶216
[2013 (6) CTC 28]
P.MUTHUSAMY VS. K.ARUMUGAM AND OTHERSDistinguished¶223
[2016 (6) CTC 740]
DELHI DEVELOPMENT AUTHORITY VS. SKIPPER CONSTRUCTION CO.(P) LTD., AND OTHERSDistinguished¶225
[ 2000 (1) CTC 507]
CHOTANBEN AND ANOTHER VS. KIRITBHAI JALKRUSHNABHAI THAKKAR AND OTHERSApplied¶235
[2018 (5) MLJ 588 (SC)]
ELECTRONIC MACHINE TOOLS LIMITED VS. POWER ENGINEERS, RAMANATHAPURAM AND ANOTHERReferred¶64
[2011 (6) MLJ 929]
T.ARIVANANDHAM VS. T.V.SATYAPALRelied on¶85
[1977 SC 295]
5 provisions across 4 enactments
K.V.Thiruvasagar
M.GOVINDARAJ
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
