A statutory charge under Section 55(6)(b) of the Transfer of Property Act cannot be granted by a court without framing a specific issue and conducting an inquiry into whether the buyer had fulfilled the conditions, including not improperly declining to accept property delivery.

P.Krishna Kumar, J.

The first respondent in this appeal filed a suit for specific performance of a contract for sale of immovable property, with an alternative relief for return of the advance amount. By the impugned judgment and decree, the trial court dismissed the suit, but further directed that the first respondent would be entitled to recover the advance amount from defendants 1, 2, 3 and 9, with a charge over the plaint schedule property. The appellant, the defendant No.10 in the suit and the subsequent purchaser of the property, challenges the decree to the extent it fixes a statutory charge over the property.

2. For the sake of convenience, the parties would hereinafter be referred to as they were arrayed in the suit. According to the plaintiff, on 1.2.2013, defendants 1, 2, 3 and 7 executed an agreement for sale in favour of the plaintiff for a total sale consideration of Rs.1,20,00,000/-, and they jointly received Rs.10,00,000/- as advance. It is contended that the said defendants executed the agreement on behalf of defendants 4, 5, 6, 8 and 9. The plaintiff further contended that defendants 7 and 9 later received Rs.99,000/- and Rs.40,000/- respectively, and thereby the total advance amount became Rs.11,39,000/-. The plaintiff further stated that though he was always ready and willing to pay the balance sale consideration and get the sale deed executed in his favour, the defendants failed to perform their part of the contract. Meanwhile, the plaintiff filed a suit for injunction restraining the defendants from alienating the property, alleging that they were attempting to transfer the property to strangers, and later the said suit was dismissed for default. While so, defendants 2 to 9 executed a sale deed in favour of defendant No.10 pertaining to their share in the property, as per Sale Deed No.1101/1/2016 of Chengannur SRO. Therefore, the plaintiff sought a decree for specific performance together with the alternative relief of recovery of the advance amount from defendants 1 to 9 by creating a charge over the plaint schedule property, as well as a declaration that the said sale deed is invalid.

3. Defendants 1 to 9 resisted the suit by contending that the agreement could not be performed due to the lapses on the part of the plaintiff. Defendant No.10 contended that the suit is barred under Order II Rule 2 of the Code of Civil Procedure (the Code), as the plaintiff had earlier filed a suit for injunction restraining alienation, alleging that the other defendants were attempting to sell the property in violation of the contractual terms.

4. We have heard the learned counsel appearing for the appellant/defendant No.10 and the learned counsel appearing for the first respondent/plaintiff.

5. The finding of the trial court that the plaintiff is entitled to a charge over the property is assailed by defendant No.10 in this appeal mainly on the ground that the court did not consider whether the plaintiff is entitled to the statutory charge provided under Section 55(6)(b) of the Transfer of Property Act.

6. Relying on the law laid down by the Apex Court in Virgo Industries (Engg)(P) Ltd. v. Venturetech Solutions (P) Ltd. [(2013) 1 SCC 265], the trial court concluded that the suit is barred under Order II Rule 2 of the Code. Nevertheless, it is not in dispute that the bar under Order II Rule 2 does not extend to a subsequent suit for the return of advance amount. No such contention has been raised before us by defendant no. 10.

7. In the impugned judgment, the trial court has, in fact, considered solely the question of maintainability o