KTA RAJA CHETTIAR Vs. RAJAMANI

JUDGEMENT

(1.) THIS revision has been preferred by the plaintiffs, as against the dismissal of the I. A. ,filed by them to amend the Plaint to include the alternative relief of recovery of advance money paid by them to the defendants.

(2.) ACCORDING to the revision petitioners/plaintiffs, they filed the suit for specific performance of the contract based on sale agreement dated 7. 10. 1989 between them and the defendants' father one Dhanapal. As per the sale agreement, the petitioner should convert the suit property into house sites after planning survey stones and boundary stones in and around sites after drawing the layout and plan of the suit property and in that event, the deceased Dhanapal had agreed to execute the sale deed either in their name or in the name of the prospective purchasers of the sites in the suit property. But the deceased Dhanapal avoided and evaded to receive the balance of sale consideration and they never permitted to measure the land for the purpose of obtaining the approval of the lay out and he never took steps to remove the encroachments adjacent to the suit property. Due to this the plaintiffs could not offer the sites to the third parties. After the demise of the said Dhanapal, though the defendants requested the plaintiffs to wait for some time, they also did not honour the sale agreement and did not remove the illegal encroachments. Though the plaintiffs were always ready and willing to perform their part of the contract the defendants did not cooperate and hence they filed the suit for specific performance of the contract of sale. But due to inadvertence and oversight they have not claimed the alternative relief for refund of the advance amount with interest from the date of Plaint. If the defendants did not have any title to execute the sale deed in respect of the suit property, the plaintiffs are entitled to claim an alternative relief of refund of advance amount with accrued interest if any and unless the relief is included by way of amendment to the plaint, they will be put to loss and hardship.

(3.) BUT the defendants resisted the said application contending that the suit agreement itself is a fabricated one and the plaintiffs have remained quiet for nearly 14 years and only during 2003 they come forward with the present suit. No amount was received as advance and repudiation of notice claim by reply letter dated 6. 1. 2002 was made even during the life time of Dhanapal. From such refusal by Dhanapal several years have lapsed and the suit itself is barred by limitation and consequently, the proposed amendment after is period of limitation is not sustainable as the same is directly hit by Article 21 of the Limitation Act.