P.Sampath vs B.Vasanthi
- Court
- Madras High Court
CRP No.1462 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on:04.08.2026 Pronounced on:01.09.2026
CORAM
THE HON'BLE MR.JUSTICE P.B. BALAJI
CRP. No.1462 of 2026
and CMP. Nos.7160 & 7161 of 2026
1.P.Sampath
2.S.Thenmozhi
3.S.Vadivukkarasi
4.S.Ramyabharathi
5.S.Gururagavan ..Petitioner
Vs
1.B.Vasanthi
2.S.Deepa
3.S.Thaswanth Chakravarthy
(a minor son represented by his next friend
nd
mother 2 respondent, Deepa)
..Respondents
PRAYER: This Civil Revision Petition has been filed under Article 227 of the
Constitution of India, to set aside the order dated 13.11.2025 in I.A. No.3 of
2024 in O.S. No.384 of 2023, on the file of the Subordinate Court,
Tiruchengode.
For Petitioner(s):
Mr.D.Shivakumaran
For Respondent(s):
Mr.B.Jawahar
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ORDER
The defendants are the revision petitioners, aggrieved by the dismissal of
I.A. No.3 of 2024 in O.S. No.384 of 2023, filed by them invoking Order VII,
Rule 11(d) of CPC, to reject the plaint.
2. I have heard Mr.D.Shivakumaran, learned counsel for the revision
petitioners and Mr.B.Jawahar, learned counsel for the respondents.
3. An interesting question that arises for consideration in the present
revision is with regard to the issue of limitation for seeking refund of advance
paid under an agreement of sale. In order to appreciate the submissions of the
respective learned counsel, I would herein below, summarize their submissions:-
4. Mr.D.Shivakumaran, learned counsel for the revision
petitioners/defendants would firstly contend that the plaintiffs alleged that an
advance of Rs.2,00,000/- was paid out of an agreed sale consideration of
Rs.2,25,000/-, under an agreement of sale dated 29.09.2004. In and by the said
argument, the parties had contemplated one year time for payment of balance sale
consideration of Rs.25,000/- and admittedly, no suit was filed for specific
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performance and the suit was filed only for refund of the advance amount of
Rs.2,00,000/- paid by the agreement holders. Mr.D.Shivakumaran, learned
counsel for the revision petitioners would contend that the petitioners are
disentitled to seek refund beyond the period viz., 29.09.2008, when the limitation
for filing of the suit for specific performance, lapsed.
5. According to Mr.D.Shivakumaran, learned counsel for the revision
petitioners, the right to recover the advance also stood lapsed on the said date,
viz., 29.09.2008, when the three year period from the date fixed for payment of
balance sale consideration lapsed. Mr.D.Shivakumaran, learned counsel for the
revision petitioners, further contends that the Section 16(C) of the Specific
Reliefs Act, 1963, contemplates a personal bar on the plaintiffs and when the
plaintiffs are not even entitled to the relief of specific performance and
admittedly, which has never been sought for by them, the question of invoking
Section 55(6)(b) of the Transfer of Property Act, 1882 cannot enure to their
benefit to contend that the suit filed within 12 years is maintainable, as the
plaintiffs had a charge over the advance amount paid under the agreement of sale.
According to Mr.D.Shivakumaran, there is no specific Article in the Limitation
Act, providing for a limitation period, for seeking refund of advance and
therefore, the residuary Article viz., Article 113 of the Limitation Act, 1963 alone
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can be applied and admittedly, the suit not having been filed before 2008 and
filed only in the year, 2023 is hopelessly barred by limitation.
6.Mr.D.Shivakumaran, learned counsel for the revision petitioners, would
further state that in order to render a finding that the suit is barred by limitation,
no further pleadings beyond the plaint were required and without noticing the
same, the Trial Court has erroneously dismissed the reject the plaint application,
relying on inapplicable case law and also by wrongly placing reliance on the
proceedings in W.P. No.17882 of 2023, which Writ Petition was disposed of by
this Court, holding that the Sub Registrar need not be directed to remove the entry
reflecting the sale agreement, as time barred. Relying on the ratio laid down by
the Hon’ble Division Bench in N.Ramayee Vs. Sub Registrar and another,
reported in 2020 (6) CTC 697, where the Hon’ble Division Bench, held that
merely because there is an entry relating to previous agreement of sale, it will not
be a bar for dealing with the property. He would further contend that the Trial
Court, ought not to have framed the order passed by the Writ Court to, in any
manner, come to the aid of the respondents/plaintiffs, in order to save limitation.
7. Per contra, Mr.B.Jawahar, learned counsel appearing for the
respondents/plaintiffs, would contend that on the date of the agreement, the
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vendor was only a mere allottee and his right became absolute only on
30.06.2014. It is therefore the submission of Mr.Jawahar, learned counsel that
the charge available to the plaintiffs over the advance amount of Rs.2,00,000/-
would effectively commence only from 30.06.2014 and suit having been filed
within a period of 12 years is saved by Section 55(6)(b) of the Transfer of
Property Act, 1882. It is his further submission that in view of the allotment
conditions, there was also an additional bar for executing a sale deed for a period
of three years, which lapsed only on 29.06.2017 and therefore, even from this
angle, the suit was in time and rightly, the Trial Court has dismissed the
application to reject the plaint holding that the issue of limitation will have to be
decided only after trial.
8. I have carefully considered the submissions advanced by the learned
Counsel on either side.
9. At the outset, before proceeding to adjudicate the issue that arises for
consideration in the present suit, I would like to refer to an Article of
Mr.P.Valliappan, learned Senior Counsel published in 2026 (4) CTC Part 8 Index
8(1) on whether a sale agreement creates a statutory charge under Section 55(6)
(b) of the Transfer of Property Act and what would be the relevant Article under
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the Limitation Act, 1963 for filing a suit to recover the advance amount.
10. Going by the provisions and phraseology employed,
Mr.P.Valliappan, learned Senior Counsel has observed that Section 55(6)(b) of
the Transfer of Property Act, enables the buyer, unless he has wrongfully
refused to accept the delivery, to a charge on the property, for the purchase
money paid in advance, and interest thereon and when there is an absence of a
provision in the contract to the contrary, a statutory charge under Section 55(6)
(b) does not arise merely on an agreement of sale, but would stand attracted
only on completion of sale. Consequently, finding that there is no specific
provision in the limitation Act, applicable to refund of advance, paid under an
agreement of sale, the Author has concluded that the residuary Article 113 alone
can apply and not Article 62, which applies to a suit to enforce payment of
money secured by a mortgage or otherwise charged upon immovable property.
11. Keeping the view of the learned Senior Counsel, applying the ratio
laid down by this Court as well as the Hon’ble Supreme Court in relevant case
laws, I now proceed to discuss the relevant facts which are necessary to decide
this revision petition. In order to invoke Order VII Rule 11(d) of CPC, to reject
the plaint on the ground that it is barred on the ground of limitation, there is no
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second opinion that the Court can go only by the averments in the plaint and
plaint documents.
12. In this regard, I have examined the plaint in O.S. No. 384 of 2023.
The summary of the plaint is as follows:-
The plaintiffs are legal heirs of late.B.Suresh. The suit property is a
residential house. The first defendant was allotted the suit property by the Tamil
Nadu Housing Board. On 29.04.1993, even at the stage of allotment, the first
defendant entered into an agreement of sale with one B.Suresh, under whom the
plaintiffs claim right. The sale consideration was fixed at Rs.2,25,000/- and an
agreement was drawn up between the said Suresh and the defendants 1 and 2 on
29.09.2004, on which date, a sum of Rs.2,00,000/- was paid as advance by
B.Suresh to the defendants 1 and 2. The agreement was registered on the file of
the Sub Registrar, Thiruchengode in Doc. No.3682 of 2004. The parties had
agreed that the balance sale consideration of Rs.25,000/-, would be paid within
one year and a sale deed would be executed in favour of B.Suresh. It is also
contended in the plaint that B.Suresh was ready and wiling to get the sale deed
in his name, but however, the first defendant was not in a position to obtain sale
deed in his name and only on 30.06.2014, the Tamil Nadu Housing Board,
executed a registered sale deed in favour of the first defendant.
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13. The plaintiffs aver that the said Suresh was always ready and wiling
to perform his part of the contract by paying the balance sale consideration of
Rs.25,000/-, across registration of sale deed in his favour, but however, the
defendants 1 and 2, postponed the lawful demands of Mr.B.Suersh, stating that
there is a bar of three years from 30.06.2014 to alienate the suit property to third
parties. In view of the same, the said B.Suresh, in good faith waited for the bar
to pass and thereafter the said B.Suresh, died on 12.08.2019 and the plaintiffs
being his legal representatives demanded the defendants to receive the balance
sale consideration and execute sale deed in their favour. According to the
plaintiffs, the defendants dodged the plaintiffs, citing difference of opinion with
the third defendant and sought for more time to complete the sale transaction.
The plaintiffs believed the defendants 1 and 2 and did not take any legal action.
However, to their shock on 05.04.2023, the first defendant had issued a notice to
the Sub Registrar, Thiruchengode to cancel the entry reflecting the registered sale
agreement between B.Suresh and the defendants 1 and 2 in the Encumbrance
Certificate. A copy of the said notice was sent to the plaintiffs and on receipt of
the same, they realized the malafide intention of the first defendant, to defeat
the rights of the plaintiff to get the sale deed in respect of the suit property.
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14. The plaintiffs sent a reply on 29.04.2023, opting to seek refund of the
advance of Rs.2,00,000/-, together with interest at 12% per annum, thereby
clearly waiving the right to the seek specific performance of the agreement of
sale. The plaintiffs contending that they are entitled to refund of the advance of
Rs.2,00,000/- with interest, have filed the suit on the above narrated facts and
circumstances. In the plaint, they have also admitted to the factum of a Writ
Petition being filed in W.P. No.17882 of 2023 and that they have also entered
appearance by engaging a Counsel. Ultimately, the suit was filed for recovery of
Rs.6,53,465/- being the principal sum of Rs.2,00,000/-, together with future
interest.
15. The defendants took out I.A. No.3 of 2024, invoking Order VII, Rule
11(d) CPC, contending that the suit is hopelessly barred by Limitation, having
lapsed even on 29.09.2008 itself, solely due to the inaction of Mr.B.Suresh and
even assuming the bar is considered from the date of sale deed executed by the
Housing Board in favour of the first defendant on 30.06.2014, the suit ought to
have been filed atleast immediately after 30.06.2017, which admittedly has not
been done and the said B.Suresh was alive for a good two years and more, until
his demise on 12.08.2019.
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16. To the said Application, seeking rejection of the plaint, the
respondent/plaintiff filed a counter affidavit contending that the cause of action
arose only when the first defendant sent a representation to the Sub Registrar in
August 2023 and further in view of sale deed itself being executed only on
30.06.2014 by the Housing Board in favour of the first defendant and there also
existing a bar to alienate the property in favour of third parties for a period of 3
years from 30.06.2014, the suit could not have been filed before 29.06.2017. It
is further contended by the plaintiff that the limitation for seeking refund is 12
years as they have a charge on the advance paid under the agreement of sale. The
plaintiff therefore sought for rejection of the plaint.
17. The Trial Court, on considering the arguments advanced on either
side, dismissed the Application to reject the plaint finding that the issue of
limitation depends on the nature of transaction and date of accrual of cause of
action, which is a mixed question of law and facts and therefore, has to be
decided only after trial and cannot be adjudicated at the preliminary stage. In
order to appreciate the question that arises for consideration, I would like to
usefully extract some of the relevant provisions of the Limitation Act as well as
Transfer of Property Act.
Section 55 6(b) of the Transfer of Property Act:-
"55.Rights and liabilities of buyer and seller:-
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In the absence of a contract to the contrary, the buyer and the seller or
immovable property respectively are subject to the liabilities, and have
the rights, mentioned in the rules next following, of such of them as are
applicable to the property sold:
.........
(6) The buyer is entitled---
(a).........
(b) Unless he has improperly declined to accept delivery of the property,
to a charge on the property, as against the seller and all persons claiming
under him, to the extent of the seller's interest in the property for the
amount of any purchase-money properly paid by the buyer in anticipation
of the delivery and for interest on such amount and, when he properly
declines to accept the delivery, also for the earners (if any) and for the
costs (if any) awarded to him of a suit to compel specific performance of
the contract or to obtain a decree for its rescission."
Similarly, Article 62 of the Limitation Act, 1963 is placed under Part V, dealing
with suits relating to immovable property.
62. To enforce payment of money
secured by a mortgage or otherwise
charged upon immovable property
Twelve years When the money sued for
becomes due
18. The plaintiffs take shelter only Article 62 of the Limitation Act and
Section 55(6)(b) of the T & P Act, to contend that the suit is well within time.
However, the defendants contend that it is only the residuary Article 113, that
would apply and therefore, the suit is hopelessly barred by limitation. Firstly,
before delving further into the facts of the present case and the questions of law
that arise, I can straight away find that the plaint and plaint documents alone are
sufficient to decide whether the suit is barred by limitation or not. All relevant
dates and circumstances are pleaded in the plaint. Therefore, nothing outside the
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plaint or the plaint documents is to be looked into for discerning whether the suit
is in time or not.
19. The plaintiffs admittedly, claim under one B.Suresh, who had
originally entered into an agreement for sale with the first defendant and paid an
advance of Rs.2,00,000/-. It is an admitted position that the said B.Suresh, during
his lifetime, never filed a suit for specific performance and even the plaintiff
claiming under B.Suresh, have issued a notice seeking refund of Rs.2,00,000/-
with interest alone, implying that they are waiving their right to seek specific
performance of the agreement of sale between Suresh and the defendants 1 and
2. All these facts are borne out from the plaint itself.
20. Further, as contended by the plaintiffs, on the date of the agreement
the first defendant was only an allottee and not the absolute owner. The sale deed
came to be executed only on 30.06.2014 by the Tamil Nadu Housing Board in
favour of the first defendant. There is also a covenant between the Housing Board
and the first defendant/allottee that the allottee cannot deal with the property,
especially, by way of sale for a period of three years, from the date of sale deed
being executed in his favour. Applying this bar of three years also, the first
defendant as rightly contended by the plaintiffs, could not have executed any sale
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deed in favour of the said Suresh, upto 29.06.2017. However, on and from
30.06.2017, the bar is raised and there was no impediment for the first defendant
or the second defendant, joining the first defendant and executing a sale deed in
favour of Mr.B.Suresh. Mr.B.Suresh, was alive until, 12.08.2019 and during his
lifetime, he has not even chose to issue a notice seeking either enforcement of
the agreement or for refund of advance. It was only when the first defendant sent
a representation to the Sub Registrar on 05.04.2023, seeking to cancel the entry,
pertaining to the sale agreement and reflect the same in the Encumbrance
Certificate and a copy of the said representation being marked to the plaintiffs,
that the plaintiffs have woken up and issued a reply notice on 29.04.2023, seeking
for refund of the advance amount of Rs.2,00,000/-, together with interest,
alleging that they have a charge on the suit property for the said advance and
interest, which is payable by the first defendant.
21. As rightly observed by the learned Senior Counsel, Mr.P.Valliappan,
it is relevant to go by the intention of the legislature. Section 55 of the Transfer
of Property Act, enumerates the rights and liabilities of a buyer and seller. Even
going by Sub Section (6) Clause (b) of Section 55,, it deals only with a charge
being made available to a buyer, who has not improperly declined to accept the
delivery of property, over the amount of purchase money paid by the buyer in
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anticipation of delivery of the property in his favour. The Section therefore does
not become available to be taken advantage of by an agreement holder and since
the phraseology employed, it abundantly makes it clear that it is available and
arises only in respect of a concluded sale transaction and not to a sale agreement
which has not been enforced or fructified into a sale deed.
22. As rightly penned by the learned Senior Counsel, Mr.P.Valliappan, an
agreement of sale by itself does not create a statutory charge and a statutory
charge under Section 55(6)(b) of the Transfer of Property Act, arises only upon
satisfaction of conditions enumerated in the statute. Article 62 of the Limitation
Act applies only to enforcement of money due by a mortgagee or otherwise
charge upon immovable property and it is not applicable to refund claims like the
case on hand. Examining Articles 6 to 55 of the Limitation Act, 1963, which
deals with causes of action arising out of contract, I find that there is no provision
which contemplates a suit for refund of advance paid under an agreement of sale.
In such circumstances, the residuary Article 113 of the Limitation Act alone
applies and in any event, when the agreement holder is not even entitled to a
statutory charge under Section 55(6)(b), then Article 62 cannot be relied upon
and the plaintiffs will have to show that the suit has been filed within a period of
three years.
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23. In the facts of the present case, the suit ought to have been filed
within a period of three years which begins from the date fixed for performance
or in the absence of such a date, from the date on which, performance was refused.
Having already discussed the facts of the present case, it is noticed that since there
was a bar of three years for executing sale deed in favour of any third party,
limitation period for seeking refund would arise from 30.06.2017 onwards, and
the suit ought to have been filed on or before 29.06.2020. Admittedly, the suit is
not filed within the said period and the shelter attempted to be taken only under
Section 55(6)(b) of the Transfer of Property Act, read with Article 62 of the
Limitation Act is misconceived. The residuary Article 113 only alone would
apply to a case where refund of advance amount is sought for by an agreement
holder or persons claiming under the agreement holder.
24. In such view of the matter, the question of law in the present case, is
not a mixed question of fact and law which has to be tested during trial and
since relevant dates are specifically pleaded in the plaint, it is sufficient to apply
the legal provisions in order to find that the suit is filed beyond the period of
limitation. In such circumstances, the petitioners are certainly entitled to seek
rejection of the plaint invoking under Order VII, Rule 11(d) CPC, being a bar of
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limitation for instituting the suit for recovery of money seeking refund of
advance, with interest. The Trial Court has therefore clearly fell in error in
dismissing the reject the plaint application and hence, I am inclined to allow this
revision.
25. In fine, this Civil Revision Petition is allowed and the order in I.A.
No.03 of 2024 passed by the learned Additional Subordinate Judge,
Tiruchengode is set aside and consequently, the O.S. No.No.384 of 2023, is
rejected as barred by limitation. No costs. Consequently, connected
Miscellaneous Petitions are also closed.
01-09-2026
Index: Yes
Speaking order
Neutral Citation: Yes
RKP
To
The Additional Subordinate Judge, Tiruchengode, Namakkal.
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P.B.BALAJI, J.
RKP
Pre-delivery Order in
CRP. No.1462 of 2026
and CMP. Nos.7160 & 7161 of 2026
01-09-2026
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