Madras High Court
Thanikodi vs R.J.Pandiarasan (Died) on 2 August, 2021
A.S.No.54 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.No.54 of 2013
and
M.P.No.2 of 2013
Thanikodi ... Appellant / Plaintiff
-Vs-
1.R.J.Pandiarasan (Died)
2.T.R.Prabaharan
3.N.P.Ramadoss
4.T.Deiveegaraj ... Respondents / Defendants
5.P.Sulochana
6.P.Palanivelrajan
7.P.Krishnarajan
8.P.Selvarajan
(R5 to R8 are brought on record as Lrs of
the deceased R1 vide Court order dated 16.06.2017
in C.M.P.(MD)Nos.1058 to 1060 of 2017) ... Respondents
PRAYER: Appeal filed under Section 96 of the Civil Procedure Code,
against the judgment and decree passed in O.S.No.90 of 2004, dated
16.06.2009 on the file of the Additional District Court / FTC No.1,
Madurai.
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A.S.No.54 of 2013
For Appellant : Mr.V.Meenakshi Sundaram
for Mr.D.Nallathambi
For R1 : Died
For R2 : Dismissed for default
For R3 to R8 : Mr.Babu Rajendran
JUDGMENT
The plaintiff in O.S.No.90 of 2004 on the file of the Additional
District Court/ Fast Track Court No.1, Madurai, is the appellant in this
appeal.
2.The appellant entered into a sale agreement dated 13.05.1990 with
the first defendant R.J.Pandiarasan (since deceased) for buying the suit
property. The total sale consideration was fixed as Rs.7,51,000/-. The suit
property measured four acres and 33 cents. The appellant paid a sum of
Rs.1,50,000/- on the date of agreement and paid a further sum of
Rs.1,48,000/- in two installments. By 30.04.1991, the appellant had paid a
total sum of Rs.2,98,000/- to Thiru.Pandiarasan. This is admitted in
paragraph No.1 of the written statement itself. The plaintiff filed the suit
for specific performance of the agreement only on 03.10.1997. The original
agreement was not with the plaintiff. The plaintiff examined himself as
P.W.1 and one Karuppiah as P.W.2. Ex.A1 to Ex.A5 were marked. The
defendant examined himself as D.W.1. Ex.B1 to Ex.B5 were marked. After
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A.S.No.54 of 2013
consideration of the evidence on record, the learned trial Judge, by the
impugned judgment and decree dated 16.06.2009 dismissed the suit.
Aggrieved by the same, this appeal has been filed.
3.The learned counsel appearing for the appellant fairly stated that
even though the agreement was entered into on 13.05.1990, the suit came to
be filed only in the year 1997 and therefore, he may not be entitled to
specific performance of the agreement as such. However, he made it clear
that he is stressing only the alternative relief sought for by him before the
trial Court. The plaintiff had made an alternative prayer in the plaint itself
for directing the first defendant to pay him a sum of Rs.2,98,000/- with
interest at 24% per annum. According to the learned counsel for the
appellant, the trial Court erred in denying the alternative relief also. The
trial Court had erroneously invoked Article 47 of the Limitation Act. The
trial Court had proceeded on the premise that since the last date for
concluding the transaction was fixed in the agreement as 30.04.1991, the
suit should have been filed on or before 30.04.1994. Since the suit was not
filed within three years from 30.04.1991, when the sum of Rs.1,00,000/-
was accepted, the suit was held to be time-barred. The learned counsel for
the appellant would contend that the trial Court ought to have applied
Article 62 in which event, time for filing the suit for recovery of the
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A.S.No.54 of 2013
advance amount would be twelve years and not three years. The learned
counsel placed reliance on the decisions reported in (2000) 1 CTC 507
(Delhi Development Authority Vs. Skipper Construction Co.(P) Ltd., and
others) and (2016) 6 CTC 740 (P.muthusamy Vs. K.Arumugam).
4.Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment does not call for any interference.
According to him, the present suit was filed by the plaintiff after the
defendant obtained a decree for permanent injunction against him in respect
of the suit property. He would strongly contend that Section 55(6)(b) of the
Transfer of Property Act, 1881, will not have any application. Only if the
aforesaid provision enshrining the entitlement of the buyer is available for
the plaintiff, then, Article 62 of the Limitation Act will come into play and
not otherwise.
5.The learned counsel submitted that even though the agreement was
entered into way back in the year 1990 and one installment was paid on
30.04.1991, the plaintiff did not take any step for concluding the sale
agreement. Even the original sale agreement was not filed by him. He also
pointed out that in the case reported in 2016 (6) CTC 740 (P.Muthusamy
Vs.K.Arumugam), the plaintiff had specifically prayed for creation of
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A.S.No.54 of 2013
statutory charge under Section 55(6)(b) of the Transfer of Property Act,
1882. In the case on hand, no such relief was sought. On a careful reading
of the alternative prayer would show that only a personal decree for
payment of money was sought for by the plaintiff, in which case, limitation
period would only be three years and not twelve years as envisaged by
Article 62 of the Limitation Act. He called for dismissal of the appeal.
6.I carefully considered the rival contentions. The point that arises
for consideration is whether Article 47 or 62 of the Limitation Act will
apply to the case on hand. There is no dispute that there was a sale
agreement between the plaintiff and the first defendant. There is again no
dispute that a sum of Rs.2,98,000/- was received in all by the first
defendant R.J.Pandiarasan. There is again no dispute that the suit for
specific performance was not filed within three years. The first defendant
in his written statement had stated that the suit property had been disposed
of in favour of as many as 25 persons. Some of the subsequent purchasers
have been arrayed as defendants in the suit itself. As already conceded by
the learned counsel for the appellant, the suit agreement cannot be
specifically enforced. The only question that has to be determined is
whether the Court below was justified in declining to grant decree for return
of the advance amount with interest. Section 55(6)(b) of the Transfer of
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A.S.No.54 of 2013
Property Act, 1882 reads as follows:-
“Unless he has improperly declined to accept delivery of the
property, to a charge on the property, as against the seller and all
persons claiming under him, to the extent of the seller's interest in the
property, for the amount of any purchase-money properly paid by the
buyer in anticipation of the delivery and for interest on such amount
and when he properly declines to accept the delivery also for the
earnest (if any) and for the costs (if any) awarded to him of a suit to
compel specific performance of the contract or to obtain a decree of
its rescission.”
7. The said provision creates a statutory charge on the subject matter
of the agreement for the amount of any purchase-money paid by the buyer
and for interest on such amount. Of-course, the buyer cannot claim such
right, if he has improperly declined to accept delivery of the property. In
other words, if the buyer had improperly declined to accept delivery of the
property, then, he will not be entitled to any charge on the property for the
advance amount paid by him.
8. In the written statement, I do not find any pleading that the plaintiff
has improperly declined to accept delivery of the property. No issue had
been framed in this regard. There is no evidence that the appellant had
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A.S.No.54 of 2013
improperly declined to accept delivery of the property. Hence, the right set
out under Section 55(6)(b) of the Transfer of Property Act will come into
play. These provisions had been comprehensively interpreted in the two
decisions relied on by the learned counsel counsel appearing for the
appellant, namely, (2000) 1 CTC 507 (Delhi Development Authority Vs.
Skipper Construction Co.(P) Ltd., and others) and (2016) 6 CTC 740
(P.muthusamy Vs. K.Arumugam).
9.I do not find any substance in the contention of the learned counsel
for the respondent that the appellant cannot claim such right because he has
omitted to pray for creation of the charge over the suit property in this case.
When the statute itself creates a charge in favour of the agreement holder
for the purchase-money paid by him, he need not specifically make a
prayer before the Court for creation of the charge. Article 62 of the
Limitation Act relates to suit filed to enforce payment of money that has
been secured by a charge. Therefore, the appellant was not obliged to seek
creation of charge in the present plaint. The trial Court on the admitted
case of the contesting defendants ought to have granted the alternative
prayer sought for by the plaintiff. I therefore set aside the impugned
judgment and decree passed by the trial Court insofar as the denial of the
alternative prayer sought for by the appellant. The appellant is entitled to
refund of the advance money.
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A.S.No.54 of 2013
10.Now comes the question of interest. There is nothing on record to
show that the appellant made any prior demand for refund of the advance
amount. Of-course, there is an averment in the plaint that in the year 1994,
he made such a request but there is no proof for the same. Only on
03.10.1997, the suit came to be filed. Hence, the appellant will be entitled
to interest only from the date of filing of the suit.
11.Considering the conduct of the plaintiff, he will be entitled to only
6% interest on the advance amount paid by him. The judgment and decree
passed by the trial Court is set aside. The respondents are directed to pay
the plaintiff a sum of Rs.2,98,000/- with interest at the rate of 6% per
annum from 03.10.1997 till the date of payment. The appellant will be
entitled to charge over the suit property.
12. The appeal is allowed on these terms. No costs. Consequently,
connected miscellaneous petition is closed.
02.08.2021
Internet : Yes/No
Index : Yes/No
rmi
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A.S.No.54 of 2013
To
1.The Additional District Court / FTC No.1, Madurai.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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A.S.No.54 of 2013
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
A.S.No.54 of 2013
and
M.P.No.2 of 2013
02.08.2021
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