ORDER

The defendants 1 and 2 are before this Court challenging the dismissal of their application to reject the Plaint in O.S.No.18 of

2020 on the file of the learned Principal District Judge, Perambalur.

2.The facts in brief are as follows:

The respondent herein had filed O.S.No.18 of 2020 on the file of the learned Principal District Judge, Perambalur, seeking recovery of a sum of Rs.2,91,60,000/- with interest @12% per annum and to create a charge upon the schedule properties. The said sum was due towards the advance amount paid by the plaintiff for the purchase of the suit schedule properties. The plaintiff and the defendants 1 to 9 had entered into an Agreement of Sale dated 28.10.2008. Though the plaintiff was ready to pay the balance amount and to get the document executed the defendants had failed to perform their obligations in measuring the properties and demarcating the same.

The plaintiff had also paid the expenses for the same. Later, when the properties were measured there was a dispute from the adjoining land owner regarding pathway. As the purpose for the purchase of the property was for forming a layout of house sites the plaintiff wanted to resolve the disputes with reference to the pathway before the Sale Deed was executed. However, they were unable to resolve the same. In the meanwhile, two of the agreement holders had come forward to sell their shares and the plaintiff had got the Sale Deed executed in his favour. The remaining sharers have not come forward to execute the Sale Deed but have retained the advance amount paid to them. The plaintiff also contended stated that the time for filing the suit for Specific Performance had expired and therefore, a suit for recovery of money seeking a charge on the properties has been filed. The suit has been filed before the expiry of the period of limitation.

3.The defendants 1 and 2/revision petitioners who had entered appearance had immediately taken out an application for rejecting the Plaint on the grounds that the suit lacks cause of action and is barred by limitation. Their allegations with reference to the first ground was that the Agreement of Sale was an incomplete document since it has not been signed by all the signatories. Further, the terms of the Agreement clearly stipulated a time schedule for the performance of the Contract and on the face of the Agreement, the suit is barred by limitation. Further, the plaintiff having entered into a fresh contract with other defendants there is a novation of the earlier cause of action. The Agreement had provided a period of nine months for completing the Contract, however, the suit has been filed nearly after eleven years and was therefore barred by limitation.

4.The respondents/plaintiff had resisted the above application inter alia contending that the suit was not one for Specific Performance but one for refund of advance amount with a charge on the properties. The limitation was therefore twelve years as per Article 62 of the Limitation Act. The cause of action for filing the suit was the retention of the advance money by the defendants without performing their part of the Contract.

5.The learned Principal District Judge, Perambalur, by her order dated 24.02.2021 was pleased to dismiss the said application. The learned Judge has observed that both the questions regarding cause of action and limitation are questions to be proved by evidence and therefore, the petition to reject the Plaint was dismissed.

Challenging the same, the defendants 1 and 2 are before this Court.

6.The learned counsel for the revision petitioner would submit that the plaintiff has filed the suit seeking the following relief:

“to pass a decree in favour of the plaintiff as against the defendants directing the defendants to pay a sum of Rs.2,91,60,000.00 with subsequent interest @12% and create a charge upon the schedule properties for the above amount, award costs”

7.Therefore, it is crystal clear that the plaintiff does not have a charge over the