J U D G M E N T

The defendants in O.S.No.158 of 2014 on the file of the Principal District Judge, Thiruchirapalli, are the appellants in this second appeal.

2. The respondents filed the said suit for recovery of a sum of Rs.14,71,000/- with interest from the appellants herein. According to the plaintiffs, on 20.10.2010 the defendants entered into a sale agreement and for conveying the suit schedule property, the defendants had received a sum of Rs.10,00,000/- towards sale consideration. The time for performing the contract was originally fixed as one year. Later the same was extended on 20.04.2012 and 20.10.2012 and then again on 28.02.2013. Later the plaintiffs came to know that the suit property was sold in favour of one Kalaiselvam on 19.05.2014. Therefore, the plaintiffs issued notice dated 01.09.2014 seeking refund of the advance amount together with interest. The defendants sent a reply denying the very execution of the sale agreement. Therefore, the plaintiffs filed the said suit on 25.09.2014.

3. The defendants filed a written statement denying the plaint averments. The learned trial Judge framed the following issues:-

“1) Whether the agreement dated

20.10.2010 in between the plaintiffs and the defendants 1 and 2 is true, valid and binding upon the parties?

2) Whether the defendants are liable to pay the suit claim to the plaintiffs?

3) Whether there is no privity of contract in between the plaintiffs and the defendants?

4) Whether there is no cause of action for the suit?

5) Whether the agreement dated

20.10.2010 came into existence as contended in para 6 of the written statement?

6) Whether the plaintiffs are entitled to the reliefs sought for in the plaint?

7) To what relief, the plaintiffs are entitled? “

4. The second plaintiff examined herself as P.W.1 and marked Ex.A.1 to Ex.A.11. On the side of the defendants, the husband of the second defendant examined himself as D.W.1 and marked Ex.B.1 to Ex.B.5. After a consideration of the evidence on record, the trial Court by the impugned judgment and decree dated 20.10.2016 decreed the suit and directed the first defendant to pay the plaintiffs a sum of Rs.14,71,000/- with interest at the rate of 9% p.a. on the principal sum of Rs.10,00,000/- from the date of plaint till the date of decree and 6% p.a. from the date of decree till realisation. Aggrieved by the same, this appeal came to be filed.

5. The learned counsel appearing for the appellants submitted that though the point of limitation was not specifically pleaded in the written statement and no issue was framed before the trial Court, it is a duty cast on the Court under Section 3 of the Limitation Act to dismiss the suit, if it is found to be time barred even if no defence is specifically taken to that effect. The learned counsel submitted that on going through the testimony of P.W.1, it can be concluded that even though the document has been styled as sale agreement, it was in essence a loan document. Even according to the plaintiffs, the entire sale consideration has been paid and only a meagre sum of Rs.20,000/- was the balance amount. Therefore, the learned counsel would contend that the suit transaction must be treated as a loan transaction. If that be so, the limitation would run from the date of the document. Admittedly, the suit was filed beyond a period of three years from the date of Ex.A.1. He would further contend that extending the time for performance cannot extend the limitation. The learned counsel also stated that the defendants who availed a loan of Rs.30,00,000/- have been vexed with as many as four suits and few criminal cases. The learned counsel would state that the real nature of transaction had been clearly set out in the reply notice as well as in the written statement. He would contend that it is not necessary that the defendants should personally step into the witness box. In this case, the husband of the second defendant has testified in the witness box. His further argument is that the so called e