C BALASUBRAMANYAM Vs. M A WAHAB

JUDGEMENT

(1.) THIS appeal by the plaintiff against the dismissal of the suit O.S. No. 161 of 1979 on the file of the District Court, Tirunelveli, which prayed for refund, with interest, of the advance paid, to the defendants, who are brothers, on 16.3.1975 under the sale agreement of the same date, whereby the defendants agreed to sell the suit agricultural land to the plaintiff for a sum of Rs. 91,000/-Under the said sale agreement, the sale deed has to be executed within 16.11.1975. Admittedly possession of the land was given to the plaintiff on the 16.3.1975 itself. But the plea of the plaintiff was that he was defrauded by misrepresentation with reference to the property and that on 29.2.1976, the 1st defendant agreed to take back the property and pay back the advance money with interest in a year's time and that accordingly the 1st defendant took possession of the suit land, but that since the defendants did not pay back the advance as promised, the suit was filed on 16.11.1978. The defendants denied misrepresentation and also contended inter alia that the suit was barred by limitation.

(2.) THE trial court concurred with the plea of the defendants, holding that the plaintiff was not so defrauded by any misrepresentation by the defendants and that the suit was also barred by limitation under the residuary Article 113 of the Limitation Act. It negatived the contention of the plaintiff that the suit came under Article 47 of the Limitation Act and that it was within time.

(3.) NO doubt the other alternative argument of the learned counsel for the appellant is that Article 47 would apply to the present case. Article 47 runs as follows:? ?For money paid upon an existing consideration which afterwards faiis ? Three years ? The date of the Failure.? According to the learned counsel for the appellant, the above said advance money was paid upon an ?existing consideration which afterwards failed? as per Article 47. In other words, according to him, the existing consideration was the possession of the suit property that was delivered to the plaintiff pursuant to the sale agreement on 16.3.75, and, when the possession was given back as stated above on 29.2.1976 when the defendants themselves decided? not to sell the property and agreed to take back the property and pay back the advance money, with interest, in a year's time, there was a failure of the said consideration and hence thetime began to run under (sic) Article 47, fromthe date of failure of consideration, viz., 29.2.1976, and if so, there was time tor tiling the suit till 29.2.1979 while the suit was filed on 16.11.1978 itself and hence the suit was within time. In this connection, the learned counsel pointed out the plea in paragraph 8 of the plaint which reads as follows:? ?On the next Sunday 29.2.1976 the plaintiff at the request of the first defendant conveyed through messenger met the first defendant at his residence to discuss the consequences of the cancellation of the contract and the payment of the amounts demanded by the plaintiff. Plaintiff was accompanied by Thiru. Rajagopal who was present throughout these discussions. The defendant at the end of the talks accepted the cancellation of the contract by the plaintiff for the reasons stated by him and also agreed to take back the properties from the plaintiff but the first defendant however informed the plaintiff that he would not be able to refund the moneys immediately and wanted an year's time. The first defendant also agreed to pay interest at 12 per cent per annum on the said amounts. The first defendant has in conformity with this agreement between the parties taken possession of the properties from that date? To these specific allegations, the 1st defendant, in his written statement (which has been adopted by 2nd defendant) in paragraph 8 only stated as follows :? ?The alleged happenings after the issue of his reply notice dated 21.2.1976 as narrated in para 8 of the plaint are whimsical fanciful and pure products of imagination. This defendants does not even know who the alleged Rajagopal is. The other details of the said Rajagopal are deliberately suppressed with ulterior motives.? It should be noted that as against the abovesaid specific pleas made by the plaintiff in the plaint, the denial in the written statement is only general and superficial. Further, it is also not known what is meant by the statement ?the other details of the said Rajagopal are deliberately suppressed with' ulterior motives?. The alleged suppression has also not been stated, further, this later statement only makes one to disbelieve his former statement that hi does not know who the alleged Rajagopal is. However, it is significant to note that the defendants themselves admit in para. 7 of their written statement as follows:? ?This defendant approached the plaintiff to receive back his advance amount and to allow him to sell it to third parties. The plaintiff bluntly refused.? Further, even though D.W.1, the defendant deposed in crossexamination that after taking back possession, he sent Ex. A-2 (dated 21.10.1975) to plaintiff there is absolutely no reference regarding possession, in Ex. A-2 in which the 1st defendant demanded the plaintiff to make necessary arrangements to complete the sale and pay the Balance consideration. So, I do not think I can believe the version of the defendants that possession was taken back prior to Ex. A-2 (21.10.1975). Further, while the plaintif f, as P.W.1, deposed to the facts pleaded in the above said paragraph 8 of the plaint, I do not find any crossexamination to contradict those facts. That apart, the above said Rajagopal also was examined as P.W.2 who also deposed to the same effect and I do not think there was anything in the cross-examination which would shatter the above said deposition of P:W.2; what was elicited from P.W.2 was only as follows:? Tamil Disclaimer: The text is computer generated. The user must verify the authenticity of the extracted portion with the certified copy of the judgment. This extract is taken from C. Balasubramanyam v. M.A. Wahab, (1991) 1 LW 336 , at page 339 ?: So, I conclude that possession was given back to the defendants only on 29.2.1976.