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Judgment
239 paragraphs · 5,487 wordsP.R. Shivakumar, J.—The plaintiffs in the original suit are the appellants in the second appeal. They filed the original suit O.S. No. 886 of
2001 on the file of the Sub-Court, Erode against the first respondent herein, his father Chinnasamy Gounder and the respondents 3 to 8, for the
refund of an advance amount of Rs. 2,50,000/- paid under an agreement for sale dated 12.04.1995, together with interest. Learned trial Judge
decreed the suit directing the respondents/defendants to pay a sum of Rs. 3,94,671.50 together with a pendente lite and post decree interest at the
rate of 6% p.a. on Rs. 2,50,000/- (the amount paid as advance under the agreement for sale), creating a charge over the suit property for the said
amount and also directing the defendants to pay costs. On an appeal filed in A.S. No. 52 of 2007 on the file of the District Court, Erode by the
first respondent/first defendant, the learned lower appellate Judge (First Additional District Judge, Erode) allowed the appeal, reversed the
judgment of the trial Court, set aside the decree of the trial Court and dismissed the suit without costs. Hence, the plaintiffs have preferred the
present second appeal.
For the sake of convenience, the parties are referred to in accordance with their ranks in the original suit.
One Pavayammal was the owner of the suit properties, having derived title to the same under a registered sale deed dated 27.08.1986 and
partition deed dated 30.03.1995. The said sale deed and the partition deed have been produced and marked as Exs. A1 and A2 respectively. The
first defendant Samiappan is her son and the deceased Chinnasamy Gounder was her husband. Pavayammal is no more and while she was alive,
she along with her son Samiappan (first defendant) entered into an agreement with the plaintiffs under Ex. A3 dated 12.04.1995 agreeing to sell the
suit properties to the plaintiffs for a sale consideration of Rs. 10,61,000/- and received a sum of Rs. 2,50,000/- on the date of agreement as
advance and part payment of the sale price. At the time of execution of Ex. A3 agreement, the title deeds of Pavayammal, namely Exs. A1 and A2
were handed over to the plaintiffs. Subsequent to the execution of Ex. A3 agreement for sale, Pavayammal died on 30.07.1995 leaving behind her,
her son Samiappan (the first defendant) and her husband Chinnasamy Gounder (the deceased second defendant) as her legal heirs.
The above said facts are not disputed and on the other hand are admitted by the parties. For one reason or other, the sale transaction could not
be completed and the plaintiffs chose to issue a notice under Ex. A4 to the defendants 1 and 2 on 16.04.1998, terminating the agreement for sale
and calling upon them to repay the advance amount of Rs. 2,50,000/- together with interest on the said amount calculated from the date of
payment (date of agreement). For the said notice, a reply was sent by the defendants 1 and 2 through their advocate under Ex. A5 contending that
the plaintiffs had removed the fence and the trees that stood in the suit properties and also made the agricultural land unfit for cultivation by
removing the soil and leveling it with a view to convert it into house sites; that the defendants 1 and 2 had to spend a sum of Rs. 1,00,000/- to re-
convert the land into a cultivable land; that they had incurred a loss of Rs. 2,50,000/- by the removal of the fence and removal of the soil and a
further sum of Rs. 1,00,000/- by the removal of the trees from the suit land and that on the said scores, they were entitled to claim a sum of Rs.
3,50,000/- as damages from the plaintiffs. Under the above said circumstances, the plaintiffs had filed the suit for the above said reliefs based on
their contention that they were ever ready and willing to perform their part of the obligations under the agreement for sale, but the defendants 1 and
2 failed to get and produce Income Tax Clearance certificate and also failed to extend their cooperation for getting necessary approval for the
layout plan and that the same was the reason for their cancellation of the agreement. Since portions of the suit properties, which were the subject
matter of the agreement for sale under Ex. A3, were sold by defendants 1 and 2 in favour of defendants 3 to 8 subsequent to the issuance of Ex.
A4 notice, they were also made parties to the suit in order to get a decree binding on them also, as the plaintiffs had sought for a charge over the
suit properties.
Defendants 3 to 8 did not file any written statement and they remained ex parte. Defendants 1 and 2 alone contested the suit by filing a written
statement admitting the execution of Ex. A3 sale agreement and receipt of a sum of Rs. 2,50,000/- as advance. However, they contended that the
time stipulated in the agreement was an essential condition of the contract. Contending further that they (defendants 1 and 2) suffered heavy loss
due to the removal of the soil, removal of the fence, leveling of the land and conversion of the same into house sites and also due to the removal of
the trees that stood in the land, they claimed to be entitled to a sum of Rs. 3,50,000/- towards damages and since the advance amount paid by the
plaintiffs was less than the said amount, they had prayed for the dismissal of the suit. It was also their contention that the plaintiffs, who had
committed breach of contract by termination of the agreement, were not entitled to the refund of the advance amount and that the suit claim was
also hopelessly barred by limitation.
Based on the above said pleadings, three issues were framed in the trial Court, which are as follows:
1) Whether the plaintiffs are entitled to the amount claimed in the suit along with interest?
2) Whether the plaintiffs are entitled to a charge over the suit property?
3) To what other relief the plaintiffs are entitled?
After framing of the issues, a trial was conducted in which PW1 was examined and Exs. A1 to A14 were marked on the side of the plaintiffs,
whereas DW1 was examined and no document was marked on the side of the defendants.
The learned trial Judge, who heard the arguments advanced on both sides, on an appreciation of evidence, came to the conclusion that the
plaintiffs were entitled to the reliefs sought for. Though no specific issue was framed in the trial Court regarding the plea of limitation, the parties led
evidence regarding the said plea also. The learned trial Judge decided the question of limitation while deciding the first issue and decreed the suit
granting the reliefs indicated in the preamble portion of this judgment.
The said decree of the trial Court was challenged before the lower appellate Judge, namely, First Additional District Judge, Erode in A.S. No.
52 of 2007. The learned First Additional District Judge, Erode held that the suit for refund of the advance amount was barred by limitation and that
the amount paid as advance under Ex. A3 agreement was rightly forfeited. The learned lower appellate Judge also gave a finding that the plaintiffs
were the persons who committed breach of contract; that by removing the fence, removing the soil and leveling the land with the intention of
converting the land into house sites the plaintiffs had caused loss to the defendants 1 and 2 and that hence the defendants 1 and 2 were entitled to
adjust the advance amount towards damages for such loss caused by the plaintiffs. Based on the above said findings, the learned lower appellate
Judge allowed the appeal, set aside the decree passed by the trial Court and dismissed the suit without costs.
The second appeal has been admitted on the following substantial question of law:
Whether the first appellate Court has committed an error in law in dismissing the suit as barred by limitation, especially when Article 62 of the
Limitation Act, 1963 provides a period of 12 years to enforce payment of money secured by a mortgage or otherwise charge upon on immovable
property?
The arguments advanced by Mr. N. Manoharan, learned counsel for the appellants and by Mr. Sampathkumar, learned counsel for the
contesting respondent, namely, the first respondent were heard. The materials available on record were also perused.
It is an admitted fact that the properties described in plaint schedule belonged to one Pavayammal, the mother of the first defendant
Samiappan. It is also not in dispute that the said Pavayammal got the property by virtue of a sale deed dated 27.08.1976, marked as Ex. A1 and a
partition deed dated 30.03.1995 marked as Ex. A2. Though the properties belonged to Pavayammal, both Pavayammal and her son Samiappan
(first defendant) chose to enter into an agreement with the plaintiffs for the sale of the said properties to the plaintiffs for a sum of Rs. 10,61,000/-.
The said agreement dated 12.04.1995 between the plaintiffs on one hand and the first defendant and his mother Pavayammal on the other hand
has been produced as Ex. A3. A sum of Rs. 2,50,000/- was paid as advance and part payment of sale consideration. The above said facts have
not been disputed and on the other hand, admitted by the contesting parties. It is also an admitted fact that after the execution of Ex. A3
agreement, Pavayammal died on 30.07.1995 and that the properties devolved upon her son and husband (namely the first defendant and the
deceased second defendant Chinnasamy Gounder) by way of succession. It is also an admitted fact that the plaintiffs chose to terminate the
agreement by issuing a notice dated 16.04.1998, a copy of which has been marked as Ex. A4. In the said notice, the plaintiffs had averred that the
transaction could not be completed because of the non-cooperation of the defendants even though they were ready and willing to perform their
part of the obligations under the contract. According to the averments made by the plaintiffs in Ex. A4, the defendants 1 and 2, who became the
owners of the property and were bound by the terms of the agreement, failed to get the Income Tax clearance certificate from the authorities
concerned and also failed to extend their cooperation to get necessary sanction for the layout plan and the same resulted in frustration of the
contract driving the plaintiffs to issue the notice under Ex. A4 terminating the agreement and demanding refund of the advance amount with interest.
The same averments have been incorporated in the plaint.
The contention of the plaintiffs were resisted by the defendants 1 and 2, who alone contested the suit, by contending that the plaintiffs had
committed breach of contract and hence, the advance amount was liable to be forfeited. It was also contended that the plaintiffs, who got
possession of the property pursuant to the terms of the agreement, removed the fence, took away the upper layer of the soil and leveled the land
with an intention of converting the land into house sites and that by doing so, they made the land unfit for cultivation. They also contended that
several trees which stood in the land were cut and removed by the plaintiffs and by the said acts of the plaintiffs, the contesting defendants, namely
defendants 1 and 2 suffered a total loss of Rs. 3,50,000/- and that hence, the plaintiffs were not entitled to the refund of the advance amount as
claimed by them in the plaint. The same was the stand taken by the defendants 1 and 2 in their reply notice dated 26.04.1998 marked as Ex. A5.
Even after the defendants 1 and 2 took such a stand in their reply notice marked as Ex. A5, the plaintiffs did not file the suit immediately. After the
lapse of a period of more than 3 years, they issued another notice dated 30.05.2011 under Ex. A6 and thereafter filed the suit on 17.09.2001.
Besides the plea that the plaintiffs were the persons who committed breach of contract and hence the advance amount paid under the agreement
was liable to be forfeited and that the said amount could be adjusted towards the damages for the loss occasioned to the defendants 1 and 2, they
had also taken a plea that the suit for refund of advance amount filed after a lapse of 3 years from the date of expiry of the period stipulated in the
agreement for the completion of the transaction, was hopelessly barred by limitation.
The learned trial Judge took a view that the limitation for filing a suit for specific performance of the agreement was three years from the date of
expiry of the time stipulated in the agreement; that only on the expiry of the period of limitation for filing a suit for specific performance, the right to
sue for refund of advance amount would arise and that hence, the limitation for filing of the suit for refund of the advance amount should be counted
only from the date of expiry of 3 years after the expiry of the period stipulated in the agreement for performance. In line with the above said
observation, the learned trial Judge held that the period stipulated in the agreement expired on 12.04.1996 and the limitation for filing a suit for
specific performance expired on 12.04.1999 and that since the suit was filed within three years from the said date (12.04.1999), the suit was well
within time and was not barred by limitation.
The said view expressed by the learned trial Judge was rightly interfered with and held to be incorrect by the learned lower appellate Judge. Of
course the first part of the observation made by the trial Court that limitation for filing a suit for specific performance shall be three years from the
date of expiry of the period fixed in the agreement for performance shall be correct. Article 54 of the Limitation Act says that the limitation for filing
a suit for specific performance shall be three years and that the limitation shall start running from the date of expiry of the time, if any, stipulated in
the agreement and if no time is prescribed, from the date on which the plaintiff gets notice that the performance is refused. From the same, it is
obvious that if any specific date is fixed as the date on or before which the sale transaction should be completed, then limitation for filing the suit for
specific performance shall be three years from such date. If there is a clause in the agreement prescribing a period within which the transaction is to
be completed, then the limitation for filing a suit for specific performance shall start running from the expiry of the said period.
In the case on hand, the agreement stipulates a period of one year as the time for performance. A stipulation in the agreement prescribing a
time for performance in respect of an agreement for sale of immovable property shall be presumed as not an essential condition of the contract,
unless it is made so explicitly or by necessary implication by the parties to the agreement. The question whether the time stipulated in the agreement
for completion of the transaction is an essential condition of the contract or not, has no relevance for the purpose of calculating the period of
limitation. It shall be relevant for granting or refusing the relief of specific performance and the same has no relevance to the question of limitation,
since Article 54 of the Limitation Act makes it unambiguous that a suit for specific performance has to be filed within 3 years from the date fixed in
the agreement for performance or in case no date is fixed, then three years from the date on which plaintiff has notice that performance is refused.
For the purpose of Article 54, agreements can be divided into two categories as follows:
1) Agreements wherein time has been prescribed for performance or a date is mentioned on the date on or before which the performance is to be
made; and
2) Agreements wherein no such time or date is prescribed for performance. In the first category of agreements, the limitation for filing the suit for
specific performance shall start from the date of expiry of the period stipulated in the agreement or the date mentioned in the agreement as the date
on or before which performance is to be made. In the second category of cases, limitation shall not start running till performance is refused and the
plaintiff gets notice of such refusal to perform. Only from the date of getting notice that the performance is refused, limitation for filing suit for
specific performance in the second category of cases will start running. In this case, one year period has been prescribed in Ex. A3 agreement as
the time for performance. Therefore, a suit for specific performance should have been filed within three years from the date of expiry of one year
from the date of Ex. A3.
The next question that arises for consideration is whether the present suit for refund of the advance amount is also a suit for specific
performance for the purpose of limitation. In this case, though the agreement Ex. A3 was entered into for the sale of the suit properties to the
plaintiffs, the suit has not been filed for the completion of the sale transaction in terms of the agreement has been claimed as the main relief for sale.
It is also not a suit in which the relief of specific performance directing the defendants to execute a sale deed in terms of the agreement has been
claimed as the main relief and in the alternative refund of the advance amount has been sought for. Though a suit by the purchaser for the refund of
the advance amount on the failure of the transaction, shall also be in enforcement of the agreement and not in derogation of the agreement, for the
purpose of limitation a suit for specific performance for compelling the performance of the obligation under the agreement is placed on a different
footing than a suit for damages or for refund of advance amount on the termination of the agreement. In cases for specific performance, namely for
specifically enforcing the mutual obligations of the parties under the agreement towards the completion of the transaction, limitation of 3 years has
been prescribed under Article 54 of the Limitation Act. For such type of suits two different starting points of limitation have been prescribed in the
said section, depending on the fact whether any time has been prescribed in the agreement for completion of the transaction or not. In case a time
has been prescribed in the agreement, irrespective of the fact whether there was any refusal or not (in the absence of an agreement or endorsement
extending time), the non-completion of the transaction by the end of that period shall be presumed to be a refusal and hence the section itself
prescribes the date of expiry of the time stipulated in the agreement as the starting point of limitation for filing the suit for specific performance.
Suppose the agreement does not prescribe a time, then the starting point of limitation shall be the date on which the plaintiff gets notice of refusal of
the other party to perform. In both cases, the limitation shall be three years and the starting point of limitation alone differs.
In this case, no doubt a time for performance has been prescribed in Ex. A3. Therefore, the limitation for filing a suit for specific performance
started running from 12.04.1996. Such suit should have been filed within three years i.e., on or before 12.04.1998. If it is a case that comes under
Article 54, then the suit shall be definitely barred by limitation. The present suit has not been filed for specifically enforcing the transaction. On the
other hand, it has been filed for refund of the advance amount. Of course, as in a suit for specific performance limitation for suing for refund of
advance amount would start either from the date of expiry of the time stipulated in the agreement or in case no time has been stipulated, from the
date on which the plaintiff gets knowledge of refusal on the part of the other party to perform. In addition, when a party which refuses to perform
his part of the obligations under the agreement opts to cancel the agreement, then, for him the limitation for seeking refund of advance amount
and/or damages shall start running from the date of such cancellation, in case no time is fixed in the agreement for performance or such cancellation
is made before the expiry of the time fixed in the agreement. In case a time has been fixed in the agreement itself and the same was not cancelled
earlier, then the limitation for refund of advance amount shall start running from the date of expiry of the period stipulated in the agreement. Such a
date of cancellation or the date of expiry of the time stipulated in the agreement, as the case may be, whichever is earlier, shall be the date on which
the right to sue for refund of the advance amount would have accrued.
In this case a time of one year has been prescribed in Ex. A3 agreement. Ex. A3, agreement was entered into on 12.04.1995. One year
period would have expired on 12.04.1996. Though the plaintiff chose to issue the notice cancelling the agreement and seeking refund of advance
amount by issuing Ex. A4 notice on 16.04.1998, the fact remains that the time stipulated in the agreement expired on 12.04.1996. Hence, the
limitation for filing a suit for refund of advance amount would have started running from 12.04.1996. There cannot be any difficulty in fixing the date
on which limitation started running. The learned trial Judge held that limitation for filing a suit for refund of advance amount will start running only
from the date on which the limitation for filing a suit for specific performance would expire; that limitation for filing a suit for specific performance
would be three years from the date of expiry of the period stipulated in Ex. A3 agreement and that the limitation for filing a suit for refund of
advance amount would be three years thereafter. Thus, the learned trial Judge held that the limitation for filing a suit for specific performance had
expired on 12.04.1999 and limitation for filing the suit for refund of advance amount would be upto 12.04.2002 and that hence the suit was filed in
time. As rightly held by the learned lower appellate Judge, the above said view expressed by the learned trial Judge was in total ignorance of and
on a misconception of the provisions of law relating to limitation for filing suits for refund of advance amount. The assumption of the trial Court that
the right to sue for refund of advance amount arises only on the expiry of the period of limitation for filing a suit for specific performance, is totally
erroneous and untenable. The learned lower appellate Judge has rightly interfered with the same. But at the same time, the learned lower appellate
Judge has also committed an error in holding that the limitation for filing a suit for refund of advance amount shall be governed by Article 54 of the
Limitation Act and shall be three years.
In this regard, the learned counsel for the appellant relied on the following judgments:
1) Videocon Properties Ltd. Vs. Dr. Bhalchandra Laboratories and Others, ; and
2) Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. and Others, ;
In Videocon Properties Ltd. Vs. Dr. Bhalchandra Laboratories and Others, , cited first above, it was held that the buyer under an agreement
for sale of an immovable property was entitled to a charge on the property as against the seller to the extent of the seller''s interest in the property
for the amount of any purchase money paid and for the interest on such amount and that as per Section 55(6)(b) of the Transfer of Property Act,
1882, the buyer under the agreement for sale was entitled to a charge even against the third party purchaser.
In Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. and Others, , cited second above, the Hon''ble Supreme Court held
that the charge of the purchaser u/s 55(6)(b) of the Transfer of Property Act, 1882 would continue to run even after the conversion of the property
into some other property. In addition, in the said case, the Hon''ble Supreme Court held that the period of limitation for enforcement of refund of
purchase money paid on the sale agreement with regard to the immovable property plus interest thereon shall be 12 years from the date when the
money becomes due. The relevant paragraphs read as follows:
These points depend upon the effect of the provisions in Sub-clause (6) of Section 55 of the Transfer of Property Act. That Section starts with
the words in the absence of a contract to the contrary"", and reads thus (insofar as it is material for our purpose):
Section 55(6)(b): The buyer is entitled
(a)...
(b) 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 property paid by the buyer in anticipation of
the delivery and for interest on such amount; and, when the 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 for its recession.
It is plain from the above provision that, in the absence of a contract to the contrary, the buyer will have a charge on the seller''s interest in the
property which is the subject matter of the sale agreement insofar as the purchase money and interest on such amount are concerned, unless the
buyer has improperly declined to accept delivery. The charge is available against the seller and all persons claiming under him. This charge in favour
of the buyer is the converse of the seller''s charge u/s 55(4)(b). The buyer''s charge under this Section is a statutory charge u/s 55(4)(b). The
buyer''s charge under this Section is a statutory charge and differs from a contractual charge which a buyer may be entitled to claim under a
separate contract AIR 1941 47 (Privy Council) . No charge is available unless the agreement is genuine. Trimbak Narayan Hardas Vs. Babulal
Motaji and Others, . As pointed out in Mulla''s Commentary on Transfer of Property Act, 8th Ed (P.411), the charge on the property u/s 55(6)(b)
is enforceable not only against the seller but against all persons claiming under him. Before the amending Act of 1929, the words ''with notice of
payment'' occurred after the words ""all the persons claiming under him"". These words were omitted as they allowed a transferee without notice to
escape. After the Amendment of 1929, notice to the purchaser has not become irrelevant.
When the property upon which the charge is created gets converted into another form, the buyer will be entitled to proceed against the
substituted security. This is a general principle of law and Section 73 of the Transfer of Property Act is only an example of the said principle. The
above principle has been applied to enforce mortgage on substituted securities (see 18 CWN 345 (Privy Council) and Muniappa v. Subbaiah,
AIR 1917 Mad. 880. The same principle which is applicable mortgages applies to cases of statutory charge u/s 55(6)(b). If immovable property is
charged and is converted into another property or money, then the charge will fasten on the property or money into which the subject matter of the
agreement is converted.
The above sub-section of Section 55 also makes it clear that the buyer is entitled to interest on the amount of purchase money paid. Interest is
payable from the date of payment of the purchase money to the seller till date of delivery of property to the purchasers or till the execution of the
sale deed, whichever is earlier. Points 1 and 2 are decided accordingly in favour of the buyers.
Point 3:
Article 62 of the Limitation Act, 1963 (which corresponds to Article 132 of the Limitation Act, 1908) provides a period of 12 years ""to
enforce payment of money secured by a mortgage or otherwise charged upon immovable property"". Time runs from the date ""when money
became due.
The ratio laid down by the Supreme Court is that the buyer shall have a statutory charge over the immovable property u/s 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 years from the date on which the right to
sue for the refund of advance amount accrues. Therefore, the lower appellate Court is definitely wrong in holding that the limitation for filing a suit
for refund of advance amount shall be governed by Article 54 of the Limitation Act and hence, the period shall be three years from the date of
accrual of the right to sue. Consequently, the lower appellate Court has committed an error in holding that the suit filed by the appellants/plaintiffs
for refund of the advance amount is barred by limitation. The said finding of the lower appellate Court is erroneous and the same deserves
interference and reversal.
The agreement for sale was entered into on 12.04.1995. Period for completion stipulated therein was one year. One year period expired on
12.04.1996. Thereafter, the plaintiff/appellant shall have 12 years period as per Article 62 of the Limitation Act for filing the suit for refund of
advance amount. 12 years period would expire on 12.04.2008. The suit was filed on 26.08.2001. Hence the filing of the suit was well within the
period of limitation. Accordingly, this Court holds that the first appellate Court has committed an error in law in dismissing the suit as barred by
limitation, when Article 62 of the Limitation Act provides a period of 12 years, to enforce payment of money charged upon an immovable
property, as the period of limitation. The said error committed by the learned lower appellate Judge is bound to be corrected. Accordingly, the
substantial question of law is answered in favour of the appellants and against the respondents. It has been held that the lower appellate Court has
committed an error in holding that the limitation for filing a suit for refund of advance amount is governed by Article 54 and the period shall be three
years; that on the other hand such suit shall be governed by Article 62 of the Limitation Act as the buyer shall have a charge over the immovable
property to the extent of the vendor''s interest in it and that the suit was filed well within the period of limitation. It is found from the judgment of the
learned lower appellate Judge that the appeal was allowed and the judgment of the trial Court was reversed only the question of limitation.
Therefore, this court is of the view that the finding of the lower appellate Court regarding the question of limitation is bound to be reversed and
A.S. No. 52 of 2007 shall be remitted back to the lower appellate Court for disposal of the appeal on merits on questions other than the question
of limitation.
In the result, the second appeal is allowed. The decree of the lower appellate Court dated 22.06.2006 is set aside. A.S. No. 52 of 2007 is
remitted back to the lower appellate Court for disposal of the same on merits on all issues other than the question of limitation. The lower appellate
Judge shall dispose of the appeal within 3 months from the date of receipt of records. There shall be no order as to costs. Consequently, the
connected miscellaneous petition is closed.