Dismissed

P.Harish Kumar v. K.Ramasamy

Madras HC25 Mar 2022AS/785/2009

Case brief

AI extract

What is this about?

This is an appeal against a decree in a suit for recovery of advance money and declaration of charge based on a sale agreement. The High Court held that the refund remedy under the Transfer of Property Act is not barred by limitation within 12 years under Article 62 of the Limitation Act and dismissed the appeal.

What did the court decide?

Appeal dismissed; judgment and decree dated 18.09.2008 in O.S.No.56 of 2007 confirmed. No costs awarded.

P.Harish Kumar Vs K.Ramasamy — Specific Performance | Madras HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 24.11.2021

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PRONOUNCED ON : 25.03.2022

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CORAM:

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THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

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A.S.No.785 of 2009

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P.Harish Kumar ... Appellant/4^th Defendant Vs. 1.K.Ramasamy ... 1^st Respondent/Plaintiff 2.K.Palanisamy 3.Janarthanam 4.N.Natesan ... Respondents 2 to 4/Defendants 1 to 3

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Prayer:- This Appeal Suit has been filed, under Order 41 Rule 1 read with Section 96 of CPC, against the judgement and decree, dated 18.09.2008, made in OS.No.56 of 2007 by the I Additional District Judge at Erode.

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For Appellant : Mr.V.Ayyadurai Senior Advocate For Respondents : Mr.N.Manokaran-R1 RR2 to 4 – Given Up

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JUDGMENT

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1.This Appeal Suit has been filed, against the judgment and decree, dated 18.09.2008, made in OS.No.56 of 2007 by the I Additional District Judge at Erode.

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2.The suit was filed, seeking a judgment and decree, directing the Defendants to pay a sum of Rs.16,91,097/- with interest, by creating a charge over the suit property and for costs.

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3.The case of the Plaintiff, as set out, in the plaint is that the Defendants 1 to 3 had executed a Power of Attorney in favour of the 4^th Defendant in respect of the suit property. The 4th Defendant had entered into a sale agreement with the Plaintiff on 19.12.1994. The total extent is 7.76 acres. The sale price was fixed at Rs.3,10,000/- per acre. The total sale

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https://hcservices.ecourts.gov.in/hcservices/

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price is Rs.24,05,600/-. The Plaintiff had paid Rs.5,00,000/towards advance. The period stipulated under the agreement is 1 year. On 27.02.1995, the Plaintiff had paid another sum of Rs.2,00,000/- towards further advance. The Plaintiff was always ready and willing to perform his part of the contract. The Defendants informed that the access to the suit property has not been provided and they were taking steps to form a pathway. Therefore, an agreement was executed on 12.9.1996 by the 4^th Defendant. The Defendants have to execute the sale deed within 6 months after the formation of pathway to the suit property. Since the Defendants informed that the co-owners had initiated objections for sub-division proceedings, the Plaintiff could not perform his part of the contract. The Plaintiff again requested the 4^th Defendant to execute a sale deed. The possession of the suit property was handed over to the Plaintiff. A legal notice was sent. But, due to over sight, in the presuit notice, the sale price is wrongly mentioned as Rs.8,30,000/-. The Defendants 1 and 3 refused to receive the notice and the Defendants 2 and 4 alone received the notice. The 4^th Defendant alone sent a reply dated 27.11.2006. In such circumstances, the suit has been filed, seeking reliefs, as stated above.

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4.The case of the 4^th Defendant is that the Plaint had been presented on 29.01.2007 and returned on 16.2.2007. Again, it was represented on 02.04.2007. The Plaint was returned on 29.01.2007, granting 2 weeks time for representation and again it was returned on 23.02.2007 with one week time. There was only one petition filed by the Plaintiff for extension of time on 02.04.2007. The proof affidavit was also presented only on 02.04.2007 and not on 29.01.2007. Therefore, there was improper filing and the returns were also not properly complied with. The suit is barred by limitation and the sale agreement becomes invalid and unenforceable. The time is the essence of the contract. The averment that the Plaintiff was always ready and willing to perform his part of the contract is not correct. The Plaintiff never approached the 4^th Defendant at any point of time. The Plaintiff had not filed the suit seeking the relief of specific performance and after 12 years, he had filed the suit which is not maintainable. In such circumstances, the suit is liable to be dismissed.

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5.On the pleadings of the parties, issues were framed by the Trial Court. Before the Trial Court, on the side of the Plaintiff, PW.1 to PW.4 were examined and Ex.A1 to Ex.A12 were marked. On the side of the Defendants, DW.1 was examined. The Trial Court had decreed the suit for a sum of Rs.7,00,000/with interest at 6% p.a., Aggrieved against the same, this Appeal Suit has been filed by the Plaintiff.

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6.This Court heard the submissions of the learned counsel on either side.

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7.The learned counsel for the appellant has submitted that without seeking the relief for specific performance, the suit filed for recovery of money alone is not maintainable. Steps are not taken by the plaintiff for specific performance in time and hence, this suit is barred by limitation. The suit was improperly filed before the lower court. The lower court without appreciating the documentary and oral evidence, passed the impugned judgment erroneously and hence, it is liable to be set aside.

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8.The learned counsel for the appellant, in support of his contentions, has relied upon the following citations:-

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a) 2021 (3) MWN (Civil) 464 (Mangalam Ammal Vs. Jayasingh ) b) 2014 (2) MWM (Civil) 374 (Ashiya Bi. Vs. Vittobai and others)

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c) AIR 2005 Calcutta 145 (Bhakti Hari Nayak and Others Vs. Vidyawati Gupta and other)

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d) 2000 (10) SCC 130 – Delhi Development Authority V. Skipper Construction Co., (P) Ltd., and Others.

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Per contra, the learned counsel for the fourth respondent would submit that as per Section 22(i) of the Specific Performance Act, alternative relief can be claimed and also as per Section 55(6) (B) of the Transfer of Property Act, statutory charge is created against the property. As per Article 62 of the Limitation Act, the limitation period is 12 years. The respondents 1, 2 and 3 have not preferred any appeal. So the agent has no legal right to file this appeal. The respondents 2 to 4 are given up in the appeal. In the absence of the principals 2 to 4, this appeal is not maintainable. In Ex.A4, it was mutually agreed that the sale deed will be executed within 6 months from the date of formation of the pathway. This condition was not fulfilled. Therefore, based on the sale agreement, sale deed cannot be executed. Therefore, he filed the abovesaid suit and the same was decreed by the lower court. He further submitted that the impugned Judgment and Decree of the lower court is proper. Therefore, he prays for the dismissal of the appeal.

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The learned counsel for the respondents, in support of his

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contentions, has relied upon the following citations.

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2013 (6) CTC 28 – K. Shanmugam & Another Vs. C. Samiappan & Others

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2016 (5) LW 820 – P.Muthusamy Vs. K. Arumugam & Others

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2019 (2) TNCJ 1008 (Mad) (MB) – J. Micheal Visuvasa Raj – Vs. S. Pasupathi

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AIR 2018 Mad 67 – N. Sekaran Vs. C.Rajendran

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on record.

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2021 (5) CTC 522 - P. Subbulakshmi & Others Vs. K.P. Ramasamy

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This Court considered the submissions of the learned counsel on either side and also perused the materials available on record.

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The defendant has not denied the documents Ex.A1 to Ex.A4 either in his reply notice or in his written statement. Regarding defective filing of the suit, he has not taken any steps for rejection of the suit under Order 07 Rule 11 of CPC before the lower court. Therefore, the said contention is not acceptable.

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In Ex.A4, it was mentioned that

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“ 12/09/1996 Mapuj;J bjhs;shapuj;jpbjhz;Zw;wp Mwhk; tUlk; brg;lk;gh; 12k; njjp. R{hpak;ghisak; fpuhkk;. hP/r/24y; cs;s g[/V/7/76 tp!;jPuz g{kpf;F hP/r/17d; tHpahf hP/r/20 ypUe;J tuf;Toa jltHpg;ghij mikf;f tHp bra;J bfhLj;j njjpapypUe;J 6 MW khj fhyf; bfLtpw;Fs; ,e;j vf;hpbkz;l; brhj;ij fpuak; bra;J bfhs;tjhf ehk; ,Ujug;gpdUk; rk;kjpj;Jf; bfhs;fpnwhk;/ ”

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But the defendant has not fulfilled this condition. A perusal of Ex.A11 shows that the order was a block for executing a sale deed and because of this, as per the sale agreement, no sale deed can be executed. Therefore, the suit filed for recovery of advance amount alone is maintainable.

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The defendant contended that this suit was barred by limitation. The learned counsel for the respondent has submitted that a charge was created. Therefore, the limitation period is 12 years, for which, he relied upon the paragraph No.23 of K. Shanmugam & Another Vs. C. Samiappan & Others in 2013 (6) CTC 28, which is extracted as follows:

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"23. The ratio laid down by the Supreme Court is that the buyer shall have a statutory charge over the immovable property under Section 55 (6) (b) of the Transfer of Property Act, 1882. The said view has been followed by various High Courts including the Division Benches of this Court. Citing all those decisions shall not be necessary. Suffice to state that now it is a settled position of law that limitation for refund of advance money with interest under an Agreement for Sale of immovable property is governed by Article 62 of the Limitation Act as the buyer has got a statutory charge over the property to the extent of interest of the seller and that hence the period of limitation shall be 12

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years from the date on which the right to sue for the refund of advance amount accrues. "

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This citation is squarely applicable to this case. So, this suit was filed within 12 years and not barred by the law of limitation.

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In this case, the trial court has arrived at a proper conclusion and decreed the suit. Therefore, there is no error or infirmity in the judgment and decree of the trial court and hence, this appeal is liable to be dismissed.

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In fine, this appeal is dismissed and the judgment and decree dated 18.09.2008, passed in O.S.No.56 of 2007 by the I Additional District Judge, Erode, is confirmed. No costs.

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Sd/-

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Assistant Registrar(CS-VII)

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//True Copy//

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Sub Assistant Registrar

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