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2012 Supreme(Mad) 3308
High Court of Judicature at Madras
M. VENUGOPAL
K. Loganathan
Versus
P. Karuppanna Gounder & Others
S.A.No.1984 of 1999
Decided on : 27-07-2012
For the Appellant:G. Rajagopal, Senior Counsel for M/s. G. Rajagopaalan Associates, Advocates.
For the Respondents:R. Krishnan for M/s. A. Sivaji, Advocates.
A suit for specific performance is barred by limitation if it is not filed within three years from the date of the breach of contract.
Headnote:
The court held that the suit for specific performance filed by the appellant was barred by limitation. The court found that the appellant had not fulfilled his part of the contract by paying the second installment of Rs.50,000/- on or before 16.09.1990 and the remaining sale consideration of Rs.26,000/- before 24.10.1990. The court also found that the appellant had not filed the suit within three years from the date of the breach of contract. The court further held that the appellant was not entitled to the alternative relief of refund of advance of Rs.80,000/- paid by him to the 1st respondent/1st defendant, because of the fact that Ex.A.1-Agreement speaks of forfeiture of the advance amount paid in case of default committed by the appellant/plaintiff in regard to the payment of second advance of Rs.50,000/- before 16.09.1990 and the third installment was to be paid before 24.10.1990.
Fact of the Case:
The appellant/plaintiff and the 1st respondent/1st defendant entered into an agreement of sale in writing, in and by which, it was agreed that the 1st respondent/1st defendant should sell and the appellant/plaintiff should purchase the suit property for a price of Rs.1,26,000/- and that a sum of Rs.50,000/- was paid as advance and part of sale price on that day. It was also agreed that a further sum of Rs.50,000/-should be paid by the appellant/plaintiff to the 1st respondent/1st defendant by 16.09.1990 [on or before the end of Avani month]. That apart, the remaining sale price of Rs.26,000/- should be paid before the end of first week of Aippasi of Promoduth year, viz., on or before 24.10.1990. Though the time was determined, it was not treated as the essence of contract.
Finding of the Court:
The court found that the appellant had not fulfilled his part of the contract by paying the second installment of Rs.50,000/- on or before 16.09.1990 and the remaining sale consideration of Rs.26,000/- before 24.10.1990. The court also found that the appellant had not filed the suit within three years from the date of the breach of contract.
Issues: Whether the appellant/plaintiff is entitled to compute the period of limitation for filing the suit, taking into consideration as a direct or indirect consequence of the interim injunction orders passed in O.S.No.52 of 1991?
Ratio Decidendi: The court held that the suit for specific performance filed by the appellant was barred by limitation. The court found that the appellant had not fulfilled his part of the contract by paying the second installment of Rs.50,000/- on or before 16.09.1990 and the remaining sale consideration of Rs.26,000/- before 24.10.1990. The court also found that the appellant had not filed the suit within three years from the date of the breach of contract. The court further held that the appellant was not entitled to the alternative relief of refund of advance of Rs.80,000/- paid by him to the 1st respondent/1st defendant, because of the fact that Ex.A.1-Agreement speaks of forfeiture of the advance amount paid in case of default committed by the appellant/plaintiff in regard to the payment of second advance of Rs.50,000/- before 16.09.1990 and the third installment was to be paid before 24.10.1990.
Final Decision: The Second Appeal is dismissed, leaving the parties to bear their own costs. The Judgment and Decree of the First Appellate Court viz., II Additional District Judge, Erode dated 05.03.1999 in A.S.No.198 of 1998 are affirmed by this Court for the reasons assigned in this Appeal. The Suit O.S.No.203 of 1994 filed by the Appellant/Plaintiff is dismissed.
1. The Appellant/Plaintiff has preferred this present Second Appeal as against the Judgment and Decree dated 05.03.1999 in A.S.No.198 of 1998 on the file of the II Additional District Judge, Erode in reversing the Judgment and Decree dated 09.07.1998 in O.S.No.203 of 1994 passed by the Learned Additional Subordinate Judge, Erode.
2. The Germane Kernel Plaint Facts filed by the Appellant/ Plaintiff are set out below:
(i) The suit property and a northern portion of it was purchased by the 1st Respondent/1st Defendant and one Karuppanna Gounder, son of Periyanna Gounder, jointly on 24.08.1961. The property purchased under the said Sale Deed was the separate property of the vendees.
(ii) One of the vendees, Karuppanna Gounder, son of Periyanna Gounder died and the said Karuppanna Gounder's legal heir Maheswaramoorthy (the son) and the 1st Respondent/1st Defendant entered into a registered Partition Deed on 28.05.1990, after which, the suit property was allotted to the share of the 1st Respondent/1st Defendant. As such, the suit property is the separate property of the 1st Respondent/1st Defendant.
(iii) On 11.06.1990, the Appellant/Plaintiff and the 1st Respondent /1st Defendant entered into an agreement of sale in writing, in and by which, it was agreed that the 1st Respondent/1st Defendant should sell and the Appellant/Plaintiff should purchase the suit property for a price of Rs.1,26,000/- and that a sum of Rs.50,000/- was paid as advance and part of sale price on that day.
(iv) Also, it was agreed that a further sum of Rs.50,000/-should be paid by the Appellant/Plaintiff to the 1st Respondent/1st Defendant by 16.09.1990 [on or before the end of Avani month]. That apart, the remaining sale price of Rs.26,000/- should be paid before the end of first week of Aippasi of Promoduth year, viz., on or before 24.10.1990. Though the time was determined, it was not treated as the essence of contract.
(v) The Appellant/Plaintiff paid a further sum of Rs.30,000/-on 28.10.1990. An endorsement was made on the back of the said agreement. The Appellant/Plaintiff was always ready and willing to perform his part of the contract. He offered the balance of sale consideration to the 1st Respondent/1st Defendant and that the 1st Respondent/1st Defendant was postponing the same for some reason or other. Subsequent to the agreement, the 1st Respondent/1st Defendant's son Kumarasamy, instituted a partition suit O.S.No.52 of 1991 on 29.01.1991 against the 1st Respondent/1st Defendant and others. He also filed I.A.No.106 of 1991 for an injunction restraining the alienation of the suit properties. In the said suit and the petition, the properties purchased on 24.08.1961 was shown as item No.1. Interim injunction restraining the 1st Respondent/1st Defendant from alienating the property was granted on 29.01.1991 and subsequently it was made absolute on 17.09.1992.
(vi) Whenever the Appellant/Plaintiff requested the 1st Respondent/1st Defendant to execute the Sale Deed in respect of the suit property he was contending that he was restrained, by an order of injunction, from selling the suit property and that he would vacate the injunction and execute the Sale Deed. The suit O.S.No.52 of 1991 filed by the 1st Respondent/1st Defendant's elder son Kumarasamy, was dismissed for default on 19.11.1993. Thereafter, the Appellant/Plaintiff requested the 1st Respondent/1st Defendant to execute the Sale Deed, but the 1st Respondent/1st Defendant although agreed to it but was evasive. A notice was issued by the Appellant/Plaintiff to the 1st Respondent/1st Defendant on 02.02.1994 requesting him to execute the Sale Deed. But the 1st Respondent/1st Defendant sent a reply, inter alia, denying the very execution of the sale agreement and called upon the Appellant/Plaintiff to provide him with a xerox copy of the agreement. The Appellant/Plaintiff sent a xerox copy of the agreement to the 1st Respondent/1st Defendant on 14.02.1994. The 1st Respondent/1st Defe
