Advocates:
['M/S V AYYADURAI', 'M/S N MANOKARAN', '', 'D GOPAL', 'P SAMUEL GUNASINGH', 'M/S P M JAYACHANDRAN', 'RR TO - GIVEN UP - VIDE IN EB']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON

: 24.11.2021

PRONOUNCED ON : 25.03.2022

CORAM:

THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

A.S.No.785 of 2009

P.Harish Kumar

... Appellant/4^th Defendant

Vs.

1.K.Ramasamy

... 1^st Respondent/Plaintiff

2.K.Palanisamy

3.Janarthanam

4.N.Natesan

... Respondents 2 to 4/Defendants 1 to 3

Prayer:- This Appeal Suit has been filed, under Order 41 Rule 1

read with Section 96 of CPC, against the judgement and decree,

dated 18.09.2008, made in OS.No.56 of 2007 by the I Additional

District Judge at Erode.

For Appellant

:

Mr.V.Ayyadurai

Senior Advocate

For Respondents

:

Mr.N.Manokaran-R1

RR2 to 4 – Given Up

JUDGMENT

1.This Appeal Suit has been filed, against the judgment and

decree, dated 18.09.2008, made in OS.No.56 of 2007 by the I

Additional District Judge at Erode.

2.The suit was filed, seeking a judgment and decree, directing

the Defendants to pay a sum of Rs.16,91,097/- with interest, by

creating a charge over the suit property and for costs.

3.The case of the Plaintiff, as set out, in the plaint is that

the Defendants 1 to 3 had executed a Power of Attorney in

favour of the 4^th Defendant in respect of the suit property.

The 4th Defendant had entered into a sale agreement with the

Plaintiff on 19.12.1994. The total extent is 7.76 acres. The

sale price was fixed at Rs.3,10,000/- per acre. The total sale

https://hcservices.ecourts.gov.in/hcservices/

price is Rs.24,05,600/-. The Plaintiff had paid Rs.5,00,000/-

towards advance. The period stipulated under the agreement is 1

year. On 27.02.1995, the Plaintiff had paid another sum of

Rs.2,00,000/- towards further advance. The Plaintiff was always

ready and willing to perform his part of the contract. The

Defendants informed that the access to the suit property has

not been provided and they were taking steps to form a pathway.

Therefore, an agreement was executed on 12.9.1996 by the 4^th

Defendant. The Defendants have to execute the sale deed within

6 months after the formation of pathway to the suit property.

Since the Defendants informed that the co-owners had initiated

objections for sub-division proceedings, the Plaintiff could

not perform his part of the contract. The Plaintiff again

requested the 4^th Defendant to execute a sale deed. The

possession of the suit property was handed over to the

Plaintiff. A legal notice was sent. But, due to over sight, in

the presuit notice, the sale price is wrongly mentioned as

Rs.8,30,000/-. The Defendants 1 and 3 refused to receive the

notice and the Defendants 2 and 4 alone received the notice.

The 4^th Defendant alone sent a reply dated 27.11.2006. In such

circumstances, the suit has been filed, seeking reliefs, as

stated above.

4.The case of the 4^th Defendant is that the Plaint had been

presented on 29.01.2007 and returned on 16.2.2007. Again, it

was represented on 02.04.2007. The Plaint was returned on

29.01.2007, granting 2 weeks time for representation and again

it was returned on 23.02.2007 with one week time. There was

only one petition filed by the Plaintiff for extension of time

on 02.04.2007. The proof affidavit was also presented only on

02.04.2007 and not on 29.01.2007. Therefore, there was improper

filing and the returns were also not properly complied with.

The suit is barred by limitation and the sale agreement becomes

invalid and unenforceable. The time is the essence of the

contract. The averment that the Plaintiff was always ready and

willing to perform his part of the contract is not correct. The

Plaintiff never approached the 4^th Defendant at any point of

time. The Plaintiff had not filed the suit seeking the relief

of specific performance and after 12 years, he had filed the

suit which is not maintainable. In such circumstances, the suit

is liable to be dismissed.

5.On the pleadings of the parties, issues were framed by the

Trial Court. Before the Trial Court, on