1 of 2017 and 27407 of 2023, for permission to take on record additional evidence in the nature of documents, are not opposed. The impugned judgment by the Division Bench of the Madras High Court at Madurai, dated 20.12.2016, in Appeal Suit (MD) No 63 of 2007, affirms the judgment and decree of specific performance passed by the court of the Additional District and Sessions Judge, Fast Track Court No.1, Tiruchirapalli, dated 28.12.2006, in O.S. Valliammai, statedly owner of 11 acres of land situated at the west end of survey numbers 55/2B1 and 55/2B2 in 58, Agaram village, Tiruverambur sub-district, Trichi district, having inherited the same being the second wife of late Ayyamperumal. Valliammai had entered into an agreement to sell dated 26.05.1988, Exhibit A-1, with respondent no. However, vide endorsement dated 26.05.1989, Exhibit A-3, the timeline for payment of the balance sale consideration and execution of the sale deed was extended by 6 months, that is, till 26.11.1989. xx xx xx I assure that there is encumbrance or dispute over the under described property except the original suit number 737/85 in the sub court. 3,00,000/- as a part of the sale consideration, but on 07.07.1991, she had refused to accept the Rs. Valliammai had assured to convert 4.40 acres of land belonging to the Ayyarmalai Trust, to ensure that the property under sale in terms of the agreement to sell (Exhibit A-1) lies adjacent to Trichy to Tanjavur road. Valliammai had also promised to settle the partition suit in O.S. She denied that the partition suit in O.S.
The sale deed was to be executed after disposal of the partition suit. Valliammai did not want to take the risk of conveying the property since the said partition suit had not been disposed of. Valliammai to execute the sale deed in 2 weeks, when he would offer the balance sale consideration. Valliammai responded vide rejoinder reply dated 16.09.1991, Exhibit S-14, in which she denied that a sale deed could be executed and specifically enforced. Valliammai from dealing with the Suit Property till she executes the sale deeds. Sriram would be filing a suit for specific performance in a short time, and was waiting for a reply to his notice. He had therefore filed a suit of injunction instead of a suit of specific performance.
Duraisamy, vide assignment agreement dated 23.12.1992, Exhibit A-2. Decree for specific performance of the agreement to sale (Exhibit A-1) was not prayed. Valliammai on several grounds, including, inter alia, constructive res judicata, bar under Order II Rule 2 of the Code of Civil Procedure, 1908, bar of limitation, failure to show readiness and willingness to perform the agreement to sell (Exhibit A-1) and invalidity of the assignment agreement (Exhibit A-2). The High Court in the impugned judgment rejected the pleas of res judicata or bar under Order II, Rule 2 of the Code in view of the pendency of the partition suit in O.S.
Sriram had also reserved his right to file a suit for specific performance during the suit for injunction in O.S. The appellants must succeed in this appeal since the suit for specific performance in O.S. Article 54 of Part II of the Schedule to the Limitation Act, 1963 stipulates the limitation period for filing a suit for specific performance as three years from the date fixed for performance, and in alternative when no date is fixed, three years from the date when the plaintiff has notice that performance has been refused. Monmatha Nath Maity, has held that for determining applicability of the first or the second part, the court will have to see whether any time was fixed for performance of the agreement to sell and if so fixed, whether the suit was filed beyond the prescribed period, unless a case for extension of time or performance was pleaded or established. We have elaborately referred to the correspondence exchanged between the parties, namely, notice dated 11.07.1991 (Exhibit A- 6), reply dated 09.08.1991 (Exhibit A-7), rejoinder dated 31.08.1991 (Exhibit S-13) and reply to the rejoinder dated 16.09.1991 (Exhibit S-14).
Sriram continued with the suit and had enjoyed benefit of temporary injunction granted in his favour. Sriram had transferred/assigned his rights under the agreement to sell (Exhibit A-1) in favour of K.P. Valliammai’s deposition as PW-2, in front of the trial court, she had accepted that no notice was served on K. Valliammai as PW-2 does not refer to her refusal or acceptance, but merely refers to the factual position that she had not issued any notice or at one point of time she had hope. Sriram’s notice of her refusal, the submission on behalf K.P. Duraisamy relying on Section 63 of the Indian Contract Act, 1872, that a promise may extend time for performance of a contract and the submission relying on S. Valliammai had only faithfully stated that there was no encumbrance or dispute over the Suit Property except the partition suit. Sriram was clearly aware of the pending suit while executing the agreement to sell (Exhibit A-1), which was agreed despite the pending litigation. Valliammai, in her reply dated 09.08.1991 (Exhibit A-7) claimed that it was not possible for her to execute the contract till the disposal of the said partition suit. Valliammai’s reply dated 09.08.1991 (Exhibit A-7) is not being read in its entirety.
Valliammai’s reply dated 09.08.1991 (Exhibit A-7) or reply to rejoinder dated 16.09.1991 (Exhibit S-14) were again sufficient written notice to K. The limitation period of three years under the second part of Article 54, which is from the date when the party had notice of the refusal by the other side, had expired when the suit for specific performance was filed on 27.09.1995. Duraisamy are not entitled to a decree for refund of Rs.1,00,000/- with interest. 50,00,000/- (Rupees Fifty Lakhs Only) to K.P. Valliammai to pay Rs.50,00,000/- (Rupees Fifty Lakhs Only) to K.P. The figure keeps in mind the advance of Rs.1,00,000/- paid on 26.05.1988 and the expenses incurred by K. A decree of Rs.50,00,000/- is passed in favour of K.P. Balasubramanian and others, are allowed and the decree of specific performance passed in favour of K.P.
50,00,000/- payable with effect from the date of this judgment along with an interest @ 8% per annum which A. Duraisamy are entitled to withdraw the amounts previously deposited by them, in terms of the decree of the trial court along with the interest accrued thereon.
