IMPORTANT POINT
The limitation period for a suit for recovery of money should be calculated from the date of refusal, not the date of the agreement, as per Article 54 of the Limitation Act.

ORDER :

1. The petitioner is before this Court seeking the following reliefs:

Wherefore, the petitioner most respectfully prays that, this Hon’ble court be pleased to issue a writ of certiorari, or any other writ, order or direction;

a) Call for the records;

b) Set-aside the impugned order dated 31.05.2018 passed by the Principal Senior Civil Judge and Chief Judicial Magistrate, Mandya, in F.R. No.43/2018, produced at Annexure-E.

c) Direct the trial Court to register the suit, adjudicate and dispose of the case on merits expeditiously and pass such other or further orders as this Hon’ble Court deems fit in the facts and circumstances of the case, in the interest of justice and equity.”

2. The petitioner had filed a suit, which came to be registered as F.R.No.43/2018 before the Senior Civil Judge and JMFC, at Mandya. The suit was filed in the year 2018, and the Registry had put up a note stating that the agreements are dated 26.08.2011 and 09.02.2012. Hence, arguments were heard on the aspect of limitation. On 14.03.2018, the matter was first taken up for hearing. Thereafter, further arguments were heard and on 31.05.2018, the suit came to be dismissed as not maintainable and not liable to be registered on account of the suit being barred by limitation.

3. While coming to the said conclusion, the trial court held that the limitation period for the recovery of money would commence from the date of the agreement. However, if a suit for specific performance had been filed seeking for an alternative relief of recovery of money, then it is from the date of refusal that the limitation period would have to be calculated. It is challenging the same, that the petitioner is before this Court seeking for the aforesaid reliefs.

4. The submission of the learned counsel for the petitioner is that;

4.1. the agreement was executed on 09.12.2012, and an amount of Rs.3,00,000/- has been acknowledged to have been received by the defendants. The plaintiff had issued a notice on 08.03.2016 calling upon the defendants to execute the sale deed. In reply thereto, on 14.03.2016, the respondents took up the stand that the amount has been forfeited and thereafter, at the request of the plaintiff and his friends, the agreement came to be cancelled and the amount was refunded, and it is in that background it was contended that the agreement of sale does not continue to be valid, the amount having been paid on 6.2.2016.

4.2. Subsequent thereto, the plaintiff did not file a suit for specific performance but chose to file a suit for recovery of money and it is in that background that the impugned order was passed.

4.3. His submission is that, it is only after the reply notice was received that the petitioner was put to a choice/election of seeking for specific performance or recovery of money, the petitioner having chosen to file a suit for recovery of money the period of limitation would have to be calculated from the date on which the reply notice was issued and not from the date on which the agreement was executed.

5. Learned counsel for respondent who has entered appearance before this Court submits that the trial Court has, by way of its order, performed substantial justice, in as much as in terms of the agreement, the sale deed was to be executed within three months by making payment of full consideration. The said sale deed not having been executed as required by May- 2012, the notice itself was issued belatedly on 8.3.2016. The reply thereto recorded the cancellation of the agreement of sale and refund of the monies.

6. It is thereafter the suit came to be filed seeking for recovery of money, the suit for specific performance being barred by limitation the question of suit for recovery of money being valid and within time would not arise and this aspect has rightly taken into consideration by the trial Court.

7. Heard Sri.Shankar.G., learned counsel appearing for the petitioner and Sri.S.A.Maruthi Prasad., learned counsel appearing for respondent. Perused papers.

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