JUDGMENT :

G. Jayachandran, J.

1. The Point for determination in this appeal is whether the plaint for specific performance can be rejected at pre trial stage on the ground of limitation by travelling beyond the statement found in the plaint and by deciding the contentious issues without trial?

2. The appellant as purchaser and the respondents 1 to 3 through their power agent the 4th respondent as vendors entered into a sale agreement in respect of 3.32 1/2 acres of land at Veeraraghavapuram Village at Kundrathur Taluk on 25.01.2004. The sale price was fixed as Rs. 87,50,000/- (Eighty Seven Lakhs Fifty Thousand only). Advance of Rs. 33,01,000/- (Thirty Three lakhs one Thousand only) received and agreed to pay the balance within 60 days from the date of agreement and execute the sale deed. Before the date of registration, the vendors agreed to handover all the original documents relating to the property to the purchaser. The vendors issued notice dated 24.09.2004 informing the purchaser that the time for contract expired on 25.03.2004. The time is essence of contract and the purchaser not ready and willing to perform his part of contract, so the contract comes to an end. However, after this notice, the vendors have received Rs. 46,50,000/- on 10.10.2004, Rs.3,50,000/- on 16.10.2004 and Rs.3,00,000/- on 20.10.2004 and made endorsement for these receipts on the sale agreement. Thereafter, through the power agent A.S. Ganesan (4th respondent) had executed the following three sale deeds on 20.10.2004 to the nominees of the agreement holder.

(1). To Jaya Prakash-32 cents for Rs. 6,00,000/-

(2). To Jayalakshmi-27 cents for Rs. 5,00,000/-

(3). To Walter Salomen-29 cents for Rs. 5,40,000/-

3. After nearly lapse of four years, the parties exchanged notices through their lawyers. In the notice dated 06.09.2008, the purchaser called upon the vendors to receive the balance sale consideration of Rs. 1,49,000/- and execute the sale deed for the balance land (2 acres 44 1/2 cents). Whereas, the vendors alleging that the agreement got terminated on 24.09.2004 and the three sale deeds dated 20.10.2004 were executed for the sale consideration paid subsequently as found in the endorsement made, denied possession with the purchaser and called upon them to return back the original title deeds.

4. On the above factual background, the suit for specific performance filed by the purchaser on 14.07.2010. At paragraph 5 of the plaint, the plaintiff had stated the time is not essence of the contract. However, the suit is within the period of 3 years limitation from the date of defendants declining to honour the contract through the notice dated 07.04.2008.

5. The vendors filed I.A. No. 295 of 2012, to reject the plaint on the ground of limitation. According to the vendors the suit for specific performance to enforce the agreement dated 25.01.2004 not filed within the three years period. The contract was terminated through notice dated 24.09.2004. The suit property already sold to one M/s. Amudh Catering Service (P) Ltd. on 11.08.2010 and they are no more the owners of the suit property.

6. The Trial Court, accepted the plea of the vendors, rejected the plaint holding that, defendants have proved that the suit is not having any cause of action sans limitation. The defendants have further proved that they have sold the property to third party for valuable consideration without the notice of the suit. The defendants have proved a solid case to get the plaint rejected under Order VII Rule 11 (a)&(d) of C.P.C.

7. The verbose order of the Trial Court is assailed on the ground that, the Trial Court miserably failed to consider the fact that, after issuing notice dated 24.09.2004, repudiating the agreement, the vendors had received the entire balance sale consideration less Rs. 1,49,000/- subsequently and on 20.10.2004 and had executed sale deeds for 88 cents out of 3 a