Point of Law: Amendment of plaint - An application for amendment of the pleadings is not to be disallowed on the ground that the same is barred by limitation

JUDGMENT :

1. This appeal has been directed against the judgment and decree in O.S.No.83/2011 on the file of Subordinate Judge's Court, Alappuzha.

2. The appellant is the first defendant. The suit was one for specific performance of contract. (Parties would hereinafter be referred as per their status before the trial court).

3. Plaintiff entered into an agreement with the defendant for the purchase of plaint schedule property for a total sale consideration of Rs.13 lakhs on 20.09.2010. On the date of agreement Rs.1,50,000/-was paid as advance sale consideration and the time of six months was stipulated for execution of the agreement. On 01.10.2010, Rs.6,50,000/-was further paid by the plaintiff towards part of sale consideration. On the next day, i.e. on 02.10.2010 first defendant shifted his residence from the property and plaintiff was put in possession and thereafter plaintiff and family have been residing in the plaint schedule property. Plaintiff invested a sum of Rs.1,50,000/-for maintenance of the house. Plaintiff repeatedly demanded the defendant to execute the agreement and he has been ready to perform his part of the contract always by paying the balance sale consideration. But the first defendant was not willing to perform his part and finally a registered notice dated 09.12.2010 was issued to the first defendant expressing the readiness and willingness of the plaintiff to execute the agreement. On 15.12.2010, first defendant and his henchmen came to the house and intimidated the plaintiff and family and attempted to drive them out of the house. Immediately, O.S.No.875/2010 was filed before the Munsiff’s Court seeking for permanent injunction. As per letter dated 11.03.2011 plaintiff demanded the defendant to be present before the Sub Registry Office, Kalavoor on 16.01.2011 to execute the sale deed. But the defendant did not turn up. Plaintiff has got sufficient means to complete the transaction. Hence the suit.

4. Subsequently plaint was amended impleading defendants 2 to 4 for the reason that first defendant availed a loan from the second defendant and committed default in repaying the amount. Second defendant initiated revenue recovery proceedings against the first defendant and he failed to clear off the debt. When the defendants 2 to 4 initiated revenue recovery proceedings plaintiff filed O.S.No.573/2012 for injunction for restraining the defendants from interfering with the possession of the plaintiff. Subsequently the plaintiff cleared off the debt due to the second defendant also. Thereafter as per order dated 12.02.2015 in I.A.No.150/2015 plaint schedule was amended incorporating 5 cents and excess land and the building and other improvements comprising in re-survey No.121/4/1.

5. First defendant filed written statement stoutly denying the allegations in the plaint. Suit has been filed suppressing the material facts and plaintiff is not entitled to get any decree by way of equity or discretion. Agreement executed is admitted. Receipt of Rs.1,50,000/-on the date of agreement towards advance and Rs.6,50,000/-subsequently towards part of sale consideration is also admitted. There was no transfer of possession of property in pursuance of the agreement and on humanitarian consideration plaintiff was allowed to occupy the building. It is denied that plaintiff invested Rs.1,50,000/-for maintenance of the house. Plaintiff was never ready and willing to perform his part of contract. O.S.No.875/2010 was a frivolus suit. The defendant was not informed to be present before the Sub Registry Office on 16.01.2011. Plaintiff was not having the balance sale consideration for executing the sale deed. The house in the plaint schedule property is the only house of the first defendant and family. He was compelled to sell his property to discharge his huge debt due to loss in business. Amount was due from him to Union Bank of India, State Bank of Travancore, Canara Bank as well as Kerala State Financial Enterprises (K.S.F.E.).