A.Karuppaswamy vs O.A.Ramasamy
2023 Latest Caselaw 4389 Mad

                                                                            S.A.No. 1506 of 2011

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 18.04.2023

                                                        CORAM

                         THE HONOURABLE MR. JUSTICE V. LAKSHMINARAYANAN

                                                   S.A.No. 1506 of 2011

                    A.Karuppaswamy                        ... Appellant/Appellant/Plaintiff

                                                          Vs.

                    1.      O.A.Ramasamy

                    2.      Sampath Kumar             ... Respondents/Respondents/Defendants

                    PRAYER: This Second Appeal is filed under Section 100 of Civil
                    Procedure Code, against the Judgment and Decree dated 28.02.2011 made
                    in A.S.No. 49 of 2010 on the file of the Additional District Judge and Fast
                    Track Court No.IV, Naïve, Coimbatore at Tiruppur and confirmed the
                    Judgment and Decree dated 19.01.2010 made in O.S.No. 89 of 2006 on the
                    file of the Principal Subordinate Judge, Tiruppur.
                                                           ***
                                   For Appellant      : Mr. V.Anandhamoorthy

                                   For Respondents    : Mr. A.Kripakaran




https://www.mhc.tn.gov.in/judis                             1
                                                                           S.A.No. 1506 of 2011

                                                   JUDGMENT

This Court did not admit the Second Appeal but ordered notice

regarding admission. I am not willing to admit the appeal for the

following reasons:-

1. This is a simple suit for recovery of money. According to the

plaintiff, he entered into an agreement with the defendants on 15.04.1994.

The agreement was for the purpose of sale of the suit schedule mentioned

property. According to him, the defendants were postponing the sale of

the property which constrained him to issue a notice on 03.04.2006. A

reply was issued on 10.04.2006 denying the agreement. Since the amount

was not paid, the plaintiff levied the suit for recovery of money of

Rs.2,19,510/-, being the principal of Rs.90,000/- with interest at the rate of

12% from 15.04.1994 till the date of presentation of the plaint, namely,

13.04.2006.

2. Mr. V.Anandhamoorthy, learned counsel for the appellant

would argue that the appropriate provision of limitation which will apply

to the suit is under Article 62. According to him, an agreement of sale will

S.A.No. 1506 of 2011

amount to a charge on the property and therefore, the period of limitation

is 12 years and before the expiry of 12 years, he had presented the plaint.

3. I am not in agreement with the learned counsel. A charge is

created under Section 100 of the Transfer of Property Act either by an

order of Court or by law. This is a mere agreement of sale. There is no

creation of charge. No interest in the immovable property is transferred. It

continues to be in the realm of contract. The period of limitation for

recovery of advance amount is only for three years. By clever drafting, it

cannot be brought under Article 62. The suit is being hopelessly barred by

limitation. Hence, this Second Appeal is dismissed with costs throughout.

4. The Judgment and Decree of the Principal Sub Court, Tiruppur,

in O.S.No. 89 of 2006 dated 19.01.2010 as confirmed by the Judgment and

Decree of the learned Additional District Judge and Fast Track Court

No.IV, Naïve, Coimbatore, at Tiruppur, in A.S.No. 49 of 2010 dated

28.02.2011 are confirmed. The Second Appeal is dismissed with costs

throughout.

                                                                                     18.04.2023
                    Index     :Yes/No
                    Internet:Yes/No
                    vsg



                                                                          S.A.No. 1506 of 2011

                                                                 V. LAKSHMINARAYANAN , J.

                                                                                           vsg


                    To

1. Additional District Judge and Fast Track Court No.IV, Naïve, Coimbatore, at Tiruppur

2. Principal Sub Court, Tiruppur.

S.A.No. 1506 of 2011

18.04.2023