The appellant is the plaintiff in a suit for specific performance of an agreement of sale or in the alternative for refund of the advance amount of Rs.57,000/- with accrued interest thereon and for creating a statutory charge over the suit properties under Section 55 (6)(b) of the Transfer of Property Act, 1882, for proper payment of the said amount.

2. The case of the plaintiff, in short, is as follows:

On 23.07.2003, the first defendant entered into an agreement of sale with the plaintiff agreeing to sell the suit properties for a total sum of Rs.60,000/-. On the same day, a sum of Rs.57,000/- was paid towards advance. It was agreed between the parties that the sale should be completed on or before 17.09.2003. Though such time limit was fixed, both parties agreed that the time was not essence of the contract. When the plaintiff was always ready and willing to pay the balance amount, the first defendant was postponing the execution of the sale deed. On 06.01.2004, the plaintiff issued a registered notice expressing his readiness and willingness. It was received by the first defendant on 12.01.2004. On receipt of such notice, the first defendant sought extension of time. Accordingly, the time was extended till the end of May 2004. However, the first defendant went back on his promise and has not executed the sale deed. The second and third defendants are the sons of the first defendant. Again on 20.04.2007, the plaintiff sent another notice to the first defendant intimating about his readiness and willingness. It was served on the first defendant on 28.04.2007. However, he has not come forward to execute the sale deed. Hence, all the defendants are bound to execute the sale deed as per the suit agreement. If for any reason, the court comes to the conclusion that the relief of specific performance cannot be granted, the plaintiff is entitled to get back the advance amount with interest. The suit is filed within time under Article 54 of the Limitation Act. The plaintiff is also entitled to a charge over the suit properties under Section 55(6) (b) of the Transfer of Property Act.

3. The first defendant filed written statement wherein it is contended as follows:

The plaintiff is doing money lending business from whom the first defendant borrowed a sum of Rs.25,000/- in the year 2003 as loan. At the time of lending the amount, the plaintiff obtained signatures of the first defendant in blank stamp papers and papers as security. The plaintiff demanded exorbitant rate of interest which though was paid initially, could not be paid later. Hence, the plaintiff fabricated and misused the signed papers of the first defendant and created the suit agreement, which is not a true and genuine document, in any event not intended for selling the property.

4. The second and third defendants filed separate written statement wherein it is contended as follows:

The suit properties are the joint family properties in which these defendants are entitled to 1/3 share each. The suit agreement has not been executed on behalf of the defendants 2 and 3 who were minors at that time. They were not parties to the agreement and therefore, that would not bind them. The first defendant has not executed any sale agreement as contended by the plaintiff.

5. The trial court upon considering the rival pleadings of the parties and the evidence let in by them, though found that the suit agreement is genuine, has however, found that the relief of specific performance is barred by limitation under section 54 of the Limitation Act. Therefore, the trial court rejected the relief of specific performance. However, while considering the alternative relief of refund of the advance amount, the trial court found that such alternative prayer is not barred by limitation, as the suit has been filed within 12 years and that such relief is protected under Section 62 of the Li