JUDGMENT

(Prayer: These appeals are filed under Section 96 of the Code of Civil Procedure read with Order 41 Rule 1 of C.P.C., against the judgment and decree dated 24.04.2012 passed in O.S.No.6 of 2009 on the file of the learned District Judge of Nilgiris at Udhagamandalam.)

Common Judgment:

R. Subramanina, J.

1.Both these Appeals arise out of OS No.6 of 2009 on the file of the District Court, Nilgiris. While the defendants 2 and 3 are the appellants in AS No.103 of 2014, the fourth defendant in the said suit is the appellant in AS No.967 of 2012. The suit in OS No.6 of 2009 was filed by the first respondent in both these Appeals, in his capacity as an assignee of an agreement of sale dated 22.08.1996, seeking refund of the advance paid under the said Sale Agreement.

2. The first defendant and his brother Sampathkumar entered into an agreement of sale with a Limited Company called M/s.Club India Resorts (P) Limited. On 22.08.1996 agreeing to sell an extent of 12.33 acres of land situate at Manjanakorai Village, Ootacamund, for a consideration of Rs.1,31,00,000/-. According to the plaintiff, the said Company paid an advance of Rs.30,00,000/- by way of two cheques on 22.08.1996, thereafter, the agreement vendee had paid another sum of Rs.15,99,300/- on various dates. As per the agreement, the agreement vendee should pay a further sum of Rs.10,00,000/- on or before 10.09.1996 and upon payment of the said sum of Rs.10,00,000/-, the vendors will have to execute a Sale Deed for 2 acres of land. It was further agreed that the entire sale consideration should be paid within a period of six (6) months from the date of the agreement and on such payment the agreement vendors would execute the Sale Deed for the entire extent of the land.

3. Claiming that the agreement fell through because of the failure on the part of the agreement vendors to comply with the terms of the contract, the original agreement vendee viz. M/s.Club India Resorts (P) Limited, issued a notice on 21.05.2001 demanding repayment of the advance paid by it. The first defendant and his brother sent a reply on 06.06.2001 claiming that the agreement fell through only because of the failure on the part of the agreement vendee to pay the balance of sale consideration and its unwillingness to complete the transaction. Various correspondence between the parties regarding the disability on the part of the purchaser viz. M/s.Club India Resorts (P) Limited, were highlighted in the reply notice. The agreement vendors also specifically denied the right of the purchaser to seek refund of advance. Thereafter, the plaintiff obtained an assignment of the rights under the agreement dated 22.08.1996 on 21.11.2008 and sued for refund of advance on 25.02.2009.

4. In the plaint it was specifically pleaded that the suit is within time since a statutory charge is created in terms of Section 55(6)(b) of the Transfer of Property Act in favour of the Agreement vendee, Article 62 of the Limitation Act would apply and hence the suit is in time. It was also pleaded that since the last day for institution of the suit viz. 22.02.2009 was declared holiday, the suit filed on 25.02.2009 is in time. Since one of the agreement vendors viz. Sampathkumar had died in the meantime, his wife and daughter were impleaded as defendants 2 and 3. The other agreement vendor Mr.Lajapathi was made as the first defendant. The purchaser of the property was made the fourth defendant. It was contended that the purchase is subject to the right of the plaintiff under the agreement. The second defendant wife of one of the vendors died pending suit.

5. The defendants 1 and 3 filed a written statement contending that the suit is barred by limitation. While admitting the agreement of sale, the defendants 1 and 3 would contend that there is no privity of contract between the plaintiff and them. The right to assign and the agreement were questioned. The absence of pre-suit notice was indicated as a defect. It was specifically claimed th