THANIKODI Vs. R.RJ.PANDIARASAN

JUDGEMENT

(1.) The plaintiff in O.S.No.90 of 2004 on the file of the Additional District Court/ Fast Track Court No.1, Madurai, is the appellant in this appeal.

(2.) The appellant entered into a sale agreement dtd. 13/5/1990 with the first defendant R.J.Pandiarasan (since deceased) for buying the suit property. The total sale consideration was fixed as Rs.7,51,000.00. The suit property measured four acres and 33 cents. The appellant paid a sum of Rs.1,50,000.00 on the date of agreement and paid a further sum of Rs.1,48,000.00 in two installments. By 30/4/1991, the appellant had paid a total sum of Rs.2,98,000.00 to Thiru.Pandiarasan. This is admitted in paragraph No.1 of the written statement itself. The plaintiff filed the suit for specific performance of the agreement only on 3/10/1997. The original agreement was not with the plaintiff. The plaintiff examined himself as P.W.1 and one Karuppiah as P.W.2. Ex.A1 to Ex.A5 were marked. The defendant examined himself as D.W.1. Ex.B1 to Ex.B5 were marked. After consideration of the evidence on record, the learned trial Judge, by the impugned judgment and decree dtd. 16/6/2009 dismissed the suit. Aggrieved by the same, this appeal has been filed.

(3.) The learned counsel appearing for the appellant fairly stated that even though the agreement was entered into on 13/5/1990, the suit came to be filed only in the year 1997 and therefore, he may not be entitled to specific performance of the agreement as such. However, he made it clear that he is stressing only the alternative relief sought for by him before the trial Court. The plaintiff had made an alternative prayer in the plaint itself for directing the first defendant to pay him a sum of Rs.2,98,000.00 with interest at 24% per annum. According to the learned counsel for the appellant, the trial Court erred in denying the alternative relief also. The trial Court had erroneously invoked Article 47 of the Limitation Act. The trial Court had proceeded on the premise that since the last date for concluding the transaction was fixed in the agreement as 30/4/1991, the suit should have been filed on or before 30/4/1994. Since the suit was not filed within three years from 30/4/1991, when the sum of Rs.1,00,000.00 was accepted, the suit was held to be time-barred. The learned counsel for the appellant would contend that the trial Court ought to have applied Article 62 in which event, time for filing the suit for recovery of the advance amount would be twelve years and not three years. The learned counsel placed reliance on the decisions reported in (2000) 1 CTC 507 (Delhi Development Authority Vs. Skipper Construction Co.(P) Ltd., and others) and (2016) 6 CTC 740 (P.muthusamy Vs. K.Arumugam).