Applicability of the provisions of Article 55 in a suit for payment of money based on an agreement.

Nainar Sundaram, J.

1. In this appeal, the appellants are defendants 1, 4, 5 and 11 to 17 in O.S.No. 448 of 1974 on the file of the Second Assistant Judge, City Civil Court, Madras. The first respondent is the plaintiff in the suit and respondents 2, 3 and 4 are defendants 3, 9 and 10 respectively. The plaintiff laid the suit for recovery of Rs. 17,890/- stated to be the amount due to him from the defendants under the following circumstances: An extent of 15 acres and 94 cents comprised in Survey No. 311/1 and situated at Kottivakkam Village near Tiruvanmiyur. Saidapet Taluk, belonged to one A.K.Srivat-san. A.K.S rivatsan entered into an agreement with the plaintiff on 27.2.1962 as per Ex.A-1, agreeing to sell the land to the plaintiff for a sum of Rs. 31,880/- and received an advance of Rs. 3001/- from the plaintiff. As per this agreement, A.K. Srivatsan agreed to convey plots of land as per the requirements of the plaintiff. On 4.2.1963, as per Ex.B-4, the plaintiff entered into an agreement with defendants 1 to 3, under which the plaintiff arranged to get sale deeds in favour of defendants 1 to 3 or their nominees and the specific condition was that Rs. 2,000/- per acre should be paid to A.K. Srivatsan, and ever and above that, Rs. 2,000/- per acre should be paid to the plaintiff. Under this agreement, Ex.B-4, the plaintiff received a sum of Rs. 2,000/- from defendants 1 to 3. Thereafter, defendants 1 to 3 by themselves and through defendants 4 and 5 negotiated for the sale of land in convenient plots in favour of several purchasers and twelve sale deeds were got executed by A.K.Srivatsan in favour of defendants 3, 4 and 6 to 17 on three dates, namely, 17.5.1963, 31.5.1963 and 4.6.1963. The purchasers were fully apprised of the agreements, Ex.A-1 and B-4. The amounts due to the owner A.K. Srivatsan under the sale deeds were admittedly settled and discharged but, according to the plaintiff, the sum of Rs. 2,000/- per acre due to him as Ex.B-4 was not fully paid and he was paid only Rs. l4,070A- and the balance of Rs. 17,890/- was not paid. That was how he came to lay the suit for the recovery of the said amount. The suit was contested. The defence of the defendants was broadly two-fold. They would state that the amounts due to the plaintiff were paid and they. would rely on the receipts. Ex.B-1 to B-3 and B-7 to B-11 for amounts aggregating to Rs. 24,100/-. They would also out forth a plea of bar of limitation. The first Court formulated two issues as follows:

1. Whether the plaintiff is entitled to enforce the agreement?

2. To what relief?

The plea of discharge was tested by the first Court on the materials placed by the parties and it came to the conclusion that no reliance could be placed on the receipts referred to above and rejected this case of the defendants.

However, it found that in the agreement, there is a further endorsement, marked in the case as Ex.B-4 (a) which evidenced the receipt of a further sum of Rs. 2,000/-and giving credit to the same, the first Court held that the plaintiff is entitled to claim Rs. 15,890/-. The Court below also adverted to the question of limitation and accepted the case of the plaintiff that he was making oral demands and was receiving payments in 1967, 1968, 1969 and 1970 and these payments would come to the rescue of the plaintiff to save limitation. As a result, the suit of the plaintiff Was decreed for Rs. 15,890/-with proportionate costs.

2. The attempt by Mr. S.V. Jayaraman, learned Counsel appearing for the appellants, was to get rid of the judgment and decree of the first Court by projecting the very same pleas which have found no countenance by the first Court. On the question of discharge, as per Ex.B-1 to B-3 and B-7 to B-11, we find that the reasonings of the Court below are tenable on the evidence placed in the case. Defendants 4 and 5 are the persons who negotiated for the sales and they, having been examined as D.Ws.2 and 1 respectively, spoke about the payments to