Madras High Court
J.Vinayagam vs S.Venkatesan on 31 October, 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 07.10.2025 Pronounced on : 31.10.2025
CORAM
THE HONOURABLE MR JUSTICE P.B. BALAJI
A.S.No.573 of 2022
and
CMP.No.21686 of 2022
J.Vinayagam ... Appellant
Vs.
1.S.Venkatesan
2.C.Annapoorani
3.N.Rani @ Bhuvaneswari ... Respondents
Prayer: Appeal Suit filed under Section 96 read with Order 41 Rule 1 of the
Code of Civil Procedure, to set aside the Judgment and decree made in
O.S.No.135 of 2021 dated 27.09.2022 on the file of the Hon'ble Additional
District Judge (FTC), Vellore District.
For Appellant : Mr.S.Senthil Nathan
For Respondents : Mr.P.Jagadeesan
JUDGMENT
The plaintiff in O.S.No.135 of 2021, on the file of the Additional
District Judge, Fast Track Court, Vellore, is the appellant. The suit for
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refund of sale consideration together with interest, having been dismissed.
2. I have heard Mr.S.Senthil Nathan, learned counsel for the
appellant and Mr.P.Jagadeesan, learned counsel for the respondent.
3. The plaint pleadings in brief:-
The plaintiff entered into a registered agreement of sale on
16.11.2012 with the 1st defendant and father of the other defendants 2 and 3
for a total sale consideration of Rs.4,00,000/-. The agreement was duly
registered on the same day i.e., on 16.11.2012 and a sum of Rs.2,00,000/-
was paid as advance. Subsequently, on 02.12.2012, the plaintiff paid the
remaining consideration of Rs.2,00,000/- to the father of the defendants and
the same was executed by Subramani Naidu, the father of the defendants 2
and 3 in a separate sheet.
4. The plaintiff alleges that, despite repeated demands and oral
requests, the 1st defendant and father of the defendants 2 and 3 did not come
forward to execute the sale deed. Thereafter, the said Subramani Naidu died
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on 11.01.2018, leaving behind the defendants 2 and 3 to succeed his estate.
After the demise of Subramani Naidu, the plaintiffs had requested all the
defendants to come forward to register the sale deed. However, the
defendants have evaded the same under some pretext or other. The plaintiff,
realizing that he cannot enforce the agreement of sale, claims refund of the
consideration of Rs.4,00,000/-, along with interest at 12% per annum. The
plaintiff had also issued pre-suit notice, which was refused to be received by
the defendants. Hence the suit.
5. Written statement in brief:-
The suit is hopelessly barred by limitation. The suit ought to have
been filed within three years from 15.10.2013, the date on which the
plaintiff was required to pay the balance sale consideration of Rs.2,00,000/-.
The claim of the plaintiff is that he made repeated demands and requests for
execution of the sale deed is denied. The further claim that a sum of
Rs.2,00,000/- towards balance sale consideration was paid to the father of
the defendants 2 and 3 is also denied and the receipt is alleged to be a
forged document.
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6. Issues:-
Based on the above pleadings, the trial Court framed the following
issues:-
(i) Whether the 1st defendant and faher f
defendants 2 and 3 entered into sale agreement
with the plaintiff as alleged by the plaintiff?
(ii) Whether the 1st defendant and father of
defendants 2 and 3 received advance amount of
Rs.4 lakhs as alleged by defendants?
(iii) Whether the suit is barred by limitation
as alleged by defendants?
(iv) Whether the plaintiff is entitled for
refund of advance sale consideration of Rs.4 lakhs
with interest at 18% as prayed for?
(v) To what relief?
7. Trial:-
On the side of the plaintiff, two (2) witnesses namely PW.1 and PW.2
were examined and nine (9) documents, Ex.A1 to Ex.A9 were marked. On
the side of the defendants no oral or documentary evidence was adduced.
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8. Decision of the Trial Court:-
The trial Court found that the plaintiff was never ready and willing to
get the sale deed executed in the year 2018; the plaintiff was not able to
prove the payment of balance sale consideration of Rs.2 lakhs; PW.2, one of
the witnesses to the agreement of sale, was a person inimical to the family
of the defendants and his evidence was not credible as he was an interested
witness; the independent witness, Pratap has not been examined. The Trial
Court finally held that execution of the documents were not proved and the
plaintiff was not entitled for refund of the sale consideration. Accordingly,
the suit was dismissed.
9. Arguments of the Appellant in this Appeal:-
(i) Mr.S.Senthil Nathan, learned counsel for the appellant would
submit that the trial Court had proceeded to try the suit as if the suit was one
for specific performance, forgetting the fact that the suit was laid only for
recovery of the sale consideration of Rs.4 lakhs paid by the plaintiff. The
learned counsel would further submit that Section 55 of the Transfer of
Property Act, would squarely come into play as the advance amount of Rs.4
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lakhs was paid towards sale consideration for purchase of immovable
property and therefore, under Section 55(6)(b) of the Transfer of Property
Act, a charge has been created in favour of the proposed prospective
purchaser, namely the plaintiff and consequently the plaintiff is entitled to
file a suit within a period of 12 years and not 3 years.
(ii) Mr.S.Senthil Nathan, learned counsel for the appellant would
further states that the defendants did not even enter the witness box to prove
the contentions raised in the written statement and the trial Court has failed
to consider this crucial factor. He would therefore, submit that non-
examination of any witnesses on the side of the defendants is fatal and the
written statement itself should have been rejected by the trial Court, since
there is no oral or documentary evidence to support the contentions raised in
the written statement.
(iii) He would further state that the sale agreement is a registered
document. In the absence of any evidence on the side of the defendants, the
presumption regarding the said registered instruments in favour of their
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genuineness should operate in favour of the plaintiff. Therefore, the trial
Court has miserably erred in dismissing the suit. Insofar as the receipt
marked Ex.A2, the learned counsel would submit that the defendants had
alleged forgery. The defendants had to therefore establish their case. In the
absence of any evidence on the side of the defendants, the trial Court should
have proceeded to hold that Ex.A2 was a true and genuine document and
that the amount of Rs.2 lakhs paid by the plaintiff under the said receipt
would also become payable by the defendants.
(iv) The learned counsel for the appellant has relied on the decision
of this Court in Ammani and another Vs.Muthaya in C.R.P (PD).No.1582
of 2021 dated 10.02.2022.
10. Arguments of the counsel for the Respondent in this
Appeal:-
Per contra, Mr.P.Jagadeesan, learned counsel for the respondents
would submit that though the agreement of sale dated 16.11.2012 is a
registered instrument, the consideration i.e., paid as advance under the said
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agreement is only a sum of Rs.2 lakhs. He would contend that in normal
circumstances, when any payment towards the balance sale consideration is
made an endorsement would be made on the original sale agreement alone.
If it is not customary to execute a separate receipt acknowledging payment
of further sale consideration towards balance sale consideration. He would
also invite my attention to the said receipt, which was cited as an agreement
dated 02.12.2012 and witnessed by three persons and contend that on
scrutiny, the signatures in the registered agreement of sale and in the alleged
receipt/agreement, even to the naked eye, show that the signature on the
unregistered/receipt has been forged.
(ii) In any event it is the contention of Mr.P.Jagadeesan, learned
counsel for the respondent is that the suit is hopelessly barred by limitation
and the plaintiff cannot avail of the limitation period of 12 years and he
ought to have filed the suit within a period of 3 years, from the date on
which the agreement of sale was contemplated by the parties to be
completed by execution or registration of sale deed, thereby, conveying the
property in favour of the plaintiff.
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11. I have carefully considered the arguments advanced on either
side.
12. Points for consideration:-
The points that arise for consideration in the present appeal are as
follows:-
(A) Whether the plaintiff has established
that he is entitled to a refund of the sale
consideration, and if so, to what amount?
(B) Whether the suit claim is barred by
limitation?
13. Discussion:-
Before deciding the first point it would be appropriate to decide the
issue of limitation. The agreement of sale admittedly is a registered
instrument and it has been executed and registered on 16.11.2012. The suit
has been filed on 15.09.2021, i.e., the plaint has been presented on
15.09.2021. It is thus clear that the suit has not been filed within a period of
three years. The question that arises whether a suit for refund of sale for
consideration paid under an agreement of sale is to be filed within a period
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of three years under Article 62 of the Limitation Act, or whether the
plaintiff is entitled to take the benefit of Section 55(6)(b) of the Transfer of
Property Act and contend that unlike any other money suit, a suit for
recovery of money can be filed within 12 years. The money is otherwise
charged upon immovable property and it is only Article 62 of the Limitation
Act, which would apply.
14. This Court, in Ammani's case, following the ratio laid down by
this Court in K.Shanmugam and another Vs. C.Samiappan and other
[2013 (6) CTC 28], held that a holder of an agreement for sale is entitled to
statutory charge in immovable property, under Section 55(6)(b) of the
Transfer of Property Act, 1882. Consequently, it has been held that the suit
for refund of advance paid under such agreement, together with interest is
governed only by Article 62 of Limitation Act. The principle laid down by
this Court in Ammani's case, would squarely apply to the facts of this case.
15. A charge stands automatically created in favour of the buyer in
respect of the advance paid for the purchase of immovable property in view
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of the provision of Section 55(6)(b) of the Transfer of Property Act.
Therefore, I am unable to countenance the submissions of Mr.P.Jagadeesan,
that the suit is hopelessly barred by limitation and it ought to have been
filed within three years. Point B is answered in favour of the appellant.
16. Regarding point A, the registered agreement of sale clearly
records payment of Rs.2 lakhs as advance on the date of execution of the
agreement of sale itself. It is further contended by the plaintiff that the
remaining consideration of Rs.2 lakhs was also paid, under Ex.A12, on
02.12.2012. Though PW.2 has been examined on the side of the appellant to
establish the payment of Rs.2 lakhs, as rightly found by the trial Court,
PW.2 was admittedly not on good terms with the family of the defendants
and his evidence was certainly not credible. In fact the trial Court has also
found that the independent witness, who was a witness to both the
agreement of sale as well as Ex.A2 receipt,one Pratap, could have been
examined on the side of the plaintiff and admittedly he has not been
examined.
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17. I also find force in the submissions of Mr.P.Jagadeesan,
learned counsel for the respondent, as in normal practice, if any further
advances are made towards the balance sale consideration, it is normal that
the parties would only make an endorsement in the original sale agreement
itself. It is strange that the balance sale consideration is paid under a
document on a plain paper styled as an “agreement”. It is not even signed as
a receipt as rightly contended by the learned counsel Mr.P.Jagadeesan.
18. Signature of the father of the defendants 2 and 3 alone is
available in the said document. I am able to see there is vast difference in
the signature of the said Subramani Naidu as found in the registered sale
agreement dated 16.11.2012 and the alleged receipt/agreement dated
02.12.2012. It is highly improbable that such drastic variation in the
signature could occur within a fortnight. Therefore, the plaintiff has
miserably failed to establish that the payment of balance sale consideration
of Rs.2 lakhs under the document dated 02.12.2012 and he cannot be
entitled to recover this amount. In sofar as the advance sale consideration
that finds place even in Ex.A1, registered sale deed dated 16.11.2012, the
plaintiff cannot be deprived of refund.
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19. As I have already found, delay cannot be put against the
plaintiff, and merely because he approached the Court in 2021, it cannot
defeat the plaintiff's legitimate claim. The plaintiff is entitled to recover a
sum of Rs.2 lakhs, which is admittedly paid under the registered sale
agreement dated 16.11.2012. However, he is not entitled to claim the further
sum of Rs.2 lakhs alleged to have been paid under the unregistered
agreement dated 02.12.2012, as the same has not been proved.
20. Accordingly, the appeal is partly allowed. Consequently, the
connected Civil Miscellaneous Petition is closed. The judgment and decree
of the trial Court is set aside. The defendants/respondents are directed to
refund a sum of Rs.2 lakhs together with interest at the rate of 9% per
annum from the date of suit till realization, together with proportionate
costs in the appeal as well as in the suit.
31.10.2025
Speaking/Non-speaking : Yes/No
Index : Yes / No
Internet : Yes / No
rpl
To
The Additional District Judge (FTC), Vellore District.
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P.B. BALAJI,J.
rpl
31.10.2025
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