K P SUBRAMANIAM Vs. ELUMALAI GRAMANI

JUDGEMENT

(1.) In this appeal, the appellants are defendants 1, 4, 5 and 11 to 17 in O.S.No.448 of 1974 on the file of the Second Assistant Judge, City Civil Court, Madras. The first respondent is the plaintiff in the suit and respondents 2, 3 and 4 are defendants 3, 9 and 10 respectively. The plaintiff laid the suit for recovery of Rs.17,890.00 stated to be the amount due to him from the defendants under the following circumstances: An extent of 15 acres and 94 cents comprised in Survey No.311/1 and situated at Kottivakkam Village near Tiruvanmiyur. Saidapet Taluk, belonged to one A.K.Srivat-san. A.K.Srivatsan entered into an agreement with the plaintiff on 27.2.1962 as per Ex.A-1, agreeing to sell the land to the plaintiff for a sum of Rs.31,880.00 and received an advance of Rs.3001.00 from the plaintiff. As per this agreement, A.K.Srivatsan agreed to convey plots of land as per the requirements of the plaintiff. On 4.2.1963, as per Ex.B-4, the plaintiff entered into an agreement with defendants 1 to 3, under which the plaintiff arranged to get sale deeds in favour of defendants 1 to 3 or their nominees and the specific condition was that Rs.2,000.00 per acre should be paid to A.K.Srivatsan, and ever and above that, Rs.2,000.00 per acre should be paid to the plaintiff. Under this agreement, Ex.B-4, the plaintiff received a sum of Rs.2,000.00 from defendants 1 to 3. Thereafter, defendants 1 to 3 by themselves and through defendants 4 and 5 negotiated for the sale of land in convenient plots in favour of several purchasers and twelve sale deeds were got executed by A.K.Srivatsan in favour of defendants 3, 4 and 6 to 17 on three dates, namely, 17.5.1963, 31.5.1963 and 4.6.1963. The purchasers were fully apprised of the agreements, Ex.A-1 and B-4. The amounts due to the owner A.K.Srivatsan under the sale deeds were admittedly settled and discharged but, according to the plaintiff, the sum of Rs.2,000.00 per acre due to him as Ex.B-4 was not fully paid and he was paid only Rs.14,070.00 and the balance of Rs.17,890.00 was not paid. That was how he came to lay the suit for the recovery of the said amount, the suit was contested. The defence of the defendants was broadly two-fold. They would state that the amounts due to the plaintiff were paid and they would rely on the receipts. Ex.B-1 to B-3 and B-7 to B-11 for amounts aggregating to Rs.24,100.00. They would also out forth a plea of bar of limitation. The first Court formulated two issues as follows: 1. Whether the plaintiff is entitled to enforce the agreement"

(2.) To what relief The plea of discharge was tested by the first Court on the materials placed by the parties and it came to the conclusion that no reliance could be placed on the receipts referred to above and rejected this case of the defendants. However, it found that in the agreement, there is a further endorsement, marked in the case as Ex.B-4 (a) which evidenced the receipt of a further sum of Rs.2,000.00and giving credit to the same, the first Court held that the plaintiff is entitled to claim Rs.15,890.00. The Court below also adverted to the question of limitation and accepted the case of the plaintiff that he was making oral demands and was receiving payments in 1967, 1968, 1969 and 1970 and these payments would come to the rescue of the plaintiff to save limitation. As a result, the suit of the plaintiff was decreed for Rs.15,890.00with proportionate costs.

(3.) Mr. S.V.Jayaraman, learned Counsel for the appellants, was more vehement on the question of limitation. The sale deeds got executed admittedly on 17.5.1963, 31.5.1963 and 4.6.1963, the last of the sale deeds being of the date 4.6.1963. The stipulation as per Ex.B-4 was only that for the sales, the plaintiff should be paid Rs.2,000.00 per acre, over and above Rs.2,000.00 per acre to be paid to the owner A.K.Srivatsan. The plaintiff would legitimately be entitled to be paid the sum of Rs.2,000.00 per acre as and when the individual sale deeds got executed in favour of the purchasers. Yet, the plaintiff would state that the defendants did not pay the entirety of the amounts due to him and they agreed to pay the balance due to the plaintiff after the finalisation of the sales. The plaintiff also averred that three of the purchasers, namely, defendants 3, 4 and 17 agreed to pay the amounts due to the plaintiff after they, in their turn, sell the land to third parties. The plaintiff would further state that land acquisition proceedings got initiated subsequently and on account of this, the defendants represented that they had taken steps to have the land acquisition proceedings quashed and if they did not succeed in those steps, they would pay the amounts due to the plaintiff from and out of the compensation amount in the land acquisition proceedings. The award in the land acquisition proceedings is stated to have been passed on 25.5.1970. The plaintiff also states that all the defendants constituted themselves as trustees for the due payment of the moneys to the plaintiff. The plaintiff, in paragraph 10 of the plaint, refers to the various payments stated to have been made for and on behalf of the defendants. The suit came to be instituted on 26.8.1971. Subsequent payments after the sale deeds are stated to be in the years 1965, 1967, 1968, 1969 and 1970. Mr. S.V.Jayaraman, learned Counsel for the appellants, would try to bring the claim of the plaintiff under Article 53 of the Limitation Act, 1963, which speaks about a suit by a vendor of immovable property for personal payment of unpaid purchase money and the period of limitation is three years from the time fixed for completing the sale, or where the title is accepted after the time fixed for completion, the date of the acceptance. The reliance on this Article, in our view, is not tenable. The plaintiff cannot be given the character of an unpaid vendor of immovable property. The vendor was only A.K.Srivatsan. The plaintiff’s rights are derivable only under Ex.B-4, an independent agreement. In our view, the appropriate Article to be applied is Article 55, which speaks about compensation for the breach of any contract, express or implied not specifically provided for and the period of limitation is three years from the time when the contract is broken or where there are successive breaches, when the breach in respect of which the suit instituted occurs or where the breach is continuing, when it ceases. It is not the case of the plaintiff that there were successive breaches or that the breach was a continuous one. It is by now settled that the word ‘compensation" for breach of contract, occurring in the Article is not only referable to unliquidated damages but would also include a claim for a certain sum due under a contract, the obligations under which were not respected. In the instant case, as and when the sale deeds got executed, the plaintiff was entitled to be paid his dues as per the agreement, Ex.B-4, and when there was a failure to pay the same, the contract was broken and the cause of action arose and time would run normally from the dates of the sale deeds,. Even if we accept the case of the plaintiff that his dues should be paid after the finalisation of all the sales, we find that the last of the sale deeds was on 4.6.1963 and the three years period as per Article 55 would have lapsed even in 1966. To get over this, the plaintiff has projected a case that the defendant agreed to settle his dues after the land acquisition proceedings terminated and the compensation amounts were paid. The plaint allegations are vague. When exactly the assurance was given and accepted is not at all stated. The plaintiff, examined as P.W.I has not improved the position by his oral evidence. Except for the bald assertion that the defendants agreed to pay the dues after the land acquisition proceedings, the plaintiff, as P.W.1 has not expatiated in a convincing manner the details of the agreement or the assurance by the defendants to pay the dues after the termination of the land acquisition proceedings. The plea itself was vague and the evidence in this behalf stands on a much worse basis.