Madras High Court
P.N. Chinnasamy vs Manisekar on 16 December, 2021
S.A.No.470 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.12.2021
CORAM
THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN
S.A.No.470 of 2012
and
M.P.No.1 of 2012
P.N. Chinnasamy ... Appellant
Vs.
1.Manisekar
2.Ravichandran
3.Devika
4.Gunasekaran
5.Anandakumar ... Respondents
Prayer: Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree made in A.S.No.3/2011 dated 18.01.2012 on the file of
the Additional District Judge, (Fast Track Court-II) Gobichettipalayam
reversing the judgment and decree in O.S.No.67 of 2010 dated 30.07.2010
passed by the Sub Court, Sathyamangalam.
For Appellant : Mr. S. Parthasarathy
For Respondents : Mr. I.C. Vasudevan
1/8
https://www.mhc.tn.gov.in/judis
S.A.No.470 of 2012
JUDGMENT
This second appeal is filed against the judgment and decree
made in A.S.No.3/2011 dated 18.01.2012 on the file of the Additional
District Judge, (Fast Track Court-II) Gobichettipalayam reversing the
judgment and decree in O.S.No.67 of 2010 dated 30.07.2010 passed by the
Sub Court, Sathyamangalam.
2. Notice of motion alone was ordered. When the matter is
taken up, both the counsel are required to address on the following substantial
questions of law:
i) Whether the lower appellate Court is right in coming to an
conclusion that the suit is barred by limitation when Article 54 of the
Limitation Act, clearly states that the Limitation for Specific Performance
starts only from the refusal of execution of Sale deed as per sale agreement.
ii) Whether the plaintiff/appellant is ready and willing to perform
his part of the contract as envisaged under Section 116(3) of Specific Relief
Act.
https://www.mhc.tn.gov.in/judis
S.A.No.470 of 2012
3. For the sake of convenience, parties are referred to as per
the litigative status of the trial Court.
4. The plaintiff has filed a suit for specific performance of
the suit sale agreement under Ex.A1 in O.S.No.67 of 2010, before the learned
Subordinate Judge, Sathyamangalam and the same was decreed. Aggrieved
against the said decree, the defendant has preferred an appeal in A.S.No.3 of
2011, before the Additional District Court (Fast Track Court-II),
Gobichettipalayam, and the same was partly allowed and whereby, the relief
of specific performance was negatived, however, refund of advance amount
viz., the alternative prayer was allowed. Being aggrieved, the appellant has
preferred the second appeal.
5. The suit property is measuring 90 cents of land in
S.No.354/4 in Sathyamangalayam Village in Sathyamangalayam Town and
Sub District, Gobichettipalayam District, with specific boundaries and the
sale consideration is fixed at Rs.5 lakhs and same is filed on the same day. A
https://www.mhc.tn.gov.in/judis
S.A.No.470 of 2012
sum of Rs.5 lakhs is paid. Ex.A1-agreement is entered on 06.08.2001, there
is no recital as to the stipulation of time. Though, the contention was raised
that the suit was belatedly filed, in view of the recital in the document for
laying in the road, no such recital is found on perusal of Ex.A1, assumes
significance.
6. Admittedly, the defendants are the joint owners of the
property having obtained the property under Ex.B2/partition deed dated
29.09.1986. The relief of specific performance was resisted by the
defendants by filing a written statement, denying as to the nature and
character of Ex.A1, namely that it is only a receipt for payment of the hand
loan of Rs.5 lakhs, for medical expenses and never intended to be the sale
agreement.
6(i) Ex.A2 is the legal notice issued on 11.08.2007 and reply
notice was issued on 24.08.2007 and suit was filed on 25.07.2008. As stated
supra, the entire amount of Rs.5 lakhs for 90 cents are already paid on the
date of Ex.A1. The trial Court has allowed the main relief of specific
performance and on appeal, it was partly allowed. The relief of specific
https://www.mhc.tn.gov.in/judis
S.A.No.470 of 2012
performance was rejected and modified into alternate relief of refund of
amount with 12% interest.
7. The learned counsel for the appellant would contend that
since there is no time limit is fixed under Ex.A1/Sale agreement from the date
of refusal, in the reply notice Ex.B1 dated 24.08.2007, suit has been filed on
25.07.2008 and hence, it is within, the limitation period of Article 54 of
Limitation Act. The contra finding by the lower appellate Court is under
challenge.
8. Heard both sides.
9. After going through the evidence of P.W.1 and also taking
note of the fact that from the date of Ex.A1/sale agreement namely
06.08.2001, notice was issued on 11.08.2007, namely for six years, there was
no steps taken by the plaintiff to show his ready and willingness to perform
his part of the contract. P.W.1, in his pleadings and the evidence would state
that two of the signatory to Ex.A1/sale agreement Chinnagounder and
https://www.mhc.tn.gov.in/judis
S.A.No.470 of 2012
Palanisamy were approached. As per the pleadings, Chinnagounder died on
16.03.2006, namely the father of the defendant. Palanisamy, one of the elder
brother of the defendant died on 12.12.2007.
10. In the absence of any positive evidence, to show that the
plaintiff has taken any positive steps to execute sale agreement especially
when it is a specific case that the entire amount has been paid.
11. The learned counsel for the appellant would re agitate the
point that there was a understanding between the parties that they have to lay
a road to reach the suit property. Since they failed to do it, the plaintiff was
waiting for the same. As stated supra, in the absence of any recital for laying
of the road, the said contention cannot be accepted. Besides, there is no
independent evidence to show that there was discussion between the parties
to that scope and hence, a such plea raised by the plaintiff would not be
countenance.
12. In view of the fact that the suit has been filed in the year
2008, after seven years and notice was issued only in the year 2007 and
https://www.mhc.tn.gov.in/judis
S.A.No.470 of 2012
taking into consideration that no positive steps have been taken by the
plaintiff for execution of the sale agreement. Despite the fact, Rs.5 lakh, the
entire amount being paid which appears to be, he has abundant the
agreement.
13. The lower appellate Court has taken the notice only to the
extent of money borrowed namely advance amount under Ex.A1, has rightly
ordered for alternate relief, refund of the amount mentioned, appears to be
just and correct and the second substantial question of law is held against the
plaintiff and first substantial question of law to the extent of refund of money
mentioned in Ex.A1 alone is partly accepted.
14. Accordingly, the second appeal stands dismissed. There
shall be no order as to costs. Consequently, connected miscellaneous petition
is closed.
16.12.2021
AT
Index: Yes/No
https://www.mhc.tn.gov.in/judis
S.A.No.470 of 2012
RMT.TEEKAA RAMAN,J.
AT
To
1.The Additional District Judge, (Fast Track Court-II)
Gobichettipalayam.
2.The Sub Court, Sathyamangalam.
S.A.No.470 of 2012 and
M.P.No.1 of 2012
16.12.2021
https://www.mhc.tn.gov.in/judis
