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IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V. KARTHIKEYAN, J.
M.R. Rajkumar - Appellant
Versus
M/s. Allied Estates, Rep. by its Partner, Mohammed Arshad & Others - Respondent
C.S. No. 470 of 2012
Decided On : 11-02-2021
Limitation - Civil Suit - Order VII Rule 1 of the Civil Procedure Code - Order IV Rule 1 of the O.S. Rules - The court held that the suit was barred by limitation under Article 113 of the Limitation Act, 1963, as the right to sue accrued when the defendants committed breach of the agreement, and the suit was presented far beyond the period of limitation. The court also rejected the plaintiff's claim that Article 62 of the Limitation Act would apply, as portions of the property had already been conveyed even prior to the agreement. The suit was dismissed, and no costs were ordered.
Fact of the Case:
The plaintiff, a businessperson in the construction and sale of residential/non-residential complexes, entered into a Memorandum of Understanding with the defendant firm for the purchase of lands. The plaintiff claimed that the defendants breached the agreement and filed a suit to recover the advance amount paid.
Finding of the Court:
The court found that the suit was barred by limitation under Article 113 of the Limitation Act, 1963, as the right to sue accrued when the defendants committed breach of the agreement, and the suit was presented far beyond the period of limitation. The court also rejected the plaintiff's claim that Article 62 of the Limitation Act would apply.
Issues: The issues framed were: (i) Whether the plaintiff is entitled to the suit claim as against the second defendant? (ii) Whether the plaintiff strictly adhered to the terms of the memorandum of understanding? (iii) Whether the suit is barred by limitation? (iv) To what relief the plaintiff is entitled?
Ratio Decidendi: The court held that the suit was barred by limitation under Article 113 of the Limitation Act, 1963, as the right to sue accrued when the defendants committed breach of the agreement, and the suit was presented far beyond the period of limitation. The court also rejected the plaintiff's claim that Article 62 of the Limitation Act would apply, as portions of the property had already been conveyed even prior to the agreement.
Final Decision: The suit was dismissed, and no costs were ordered.
JUDGMENT :
Prayer: This Civil Suit is filed under Order VII Rule 1 of the Civil Procedure Code read with Order IV Rule 1 of the O.S. Rules, for a Judgment and Decree against the defendants for the following reliefs:
(a) direct the defendants herein to pay a sum of Rs.1,10,00,000/- (Rupees One Crores Ten Lakhs only) and together with interest at 12% p.a., on Rs.1,00,00,000/- (Rupees One Crores) from 18.01.2010 till date of payment;
(b) to pay all costs of the suit to the plaintiff.
1. The suit had been filed by the plaintiff M.R.Rajkumar against the defendants seeking a Judgment and Decree to pay a sum of Rs.1,00,00,000/- together with interest at 12% p.a., on Rs.1,00,00,000/- from 18.01.2010 till the date of payment and for costs of the suit.
2. It had been stated in the plaint that the plaintiff is carrying on business in constructing and selling residential / non-residential complexes, houses etc. The plaintiff was on the lookout for housing plots/sites to construct independent houses in the suburbs of Chennai. The defendant firm had offered to sell its lands measuring an extent of 50 acres in Mangalam and Echenkarani Village of Soorakuppam Village in Thirukalukundram. It had been further stated that after negotiations, a Memorandum of Understanding had been executed on 24.05.2008. The total sale consideration was fixed at Rs.55,00,000/- (Rupees Fifty Five Lakhs) per acre subject to final survey measurements and the property being free from encumbrances. The plaintiff had paid a sum of Rs.1,00,00,000/- to the first defendant as advance on 24.05.2008. It had been further stated that the first defendant should make available the title deeds and all other documents relating to the property as and when required by the plaintiff or his counsel. When ever legal clearance was given, the plaintiff had agreed to pay an additional amount of Rs.5,00,00,000/- (Rupees Five Crore). The first defendant had agreed not to enter into any other agreement with respect to the properties or encumber or create a charge or otherwise deal with the properties.
3. It is the contention of the plaintiff that the defendants did not furnish the copies of the title deeds. The sale was to be completed on or before 23.08.2008. The plaintiff demanded the title documents for scrutiny. Though the defendants assured the plaintiff that they would be furnished, they were not done.
4. In the plaint, it had been specifically stated that in December 2009, the plaintiff came across an advertisement inserted by Chennai Metropolitan Co-operative Housing Society Limited offering the same properties for sale. The plaintiff states that they realised that the defendants had breached the terms of the Memorandum of Agreement. The plaintiff then demanded refund of the advance amount paid. This was in accordance with clause 7 of the Memorandum of Understanding. A legal notice was issued on 18.01.2020. The defendants did not reply to the notice. It is under these circumstances that the suit had been filed for recovery of the advance amount paid together with interest and costs.
5. The second defendant filed written statement. In the written statement, it had been specifically stated that the suit is barred by limitation. It was also stated that the suit suffers owing to non impleading as defendants the other partners of the first defendant. It was also stated that the second defendant had retired from the partnership firm even in the year 2010 much prior to institution of the suit. It was stated that one of the partners of the first defendant, Mr. Mohammed Arshad had signed the Memorandum of Understanding. The names of the other partners were also given in the written statement. The Memorandum of Understanding was admitted. It was stated that the plaintiff had a commitment to pay Rs.6 crores as advance out of which Rs. 1 crore had to be paid at the time of signing the Memorandum of Understanding and Rs. 5 Crores to be paid on or before 23.06.2008. The balance sale consideration of Rs.21
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