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TMI Blog2024 (2) TMI 1542X X X X Extracts X X X X X X X X Extracts X X X X ..... to for raising of funds for the treatment of their mother Rosamma. Consequent on the failure of the plaintiff to pay the balance sale consideration, there occurred breach. Rosamma had entered into an agreement for sale with the third party-Rajan for purchase of his property. An amount of Rs. 13 lakhs was paid towards advance sale consideration. Consequent on the failure of the plaintiff to perform Ext.A1 agreement, the said transaction could not go through. Though a suit was filed against the said Rajan for return of the advance sale consideration, the same was dismissed for the inability of Rosamma to pay court fee. It was contended that the suit is barred by limitation. On these allegations a counter claim was raised for damages of Rs. 13 lakhs. 4. The trial court dismissed the suit and the counter claim as barred by limitation. There is no appeal by the defendants challenging the dismissal of the counter claim. Therefore, the claim for damages by the defendants does not survive for consideration. 5. I have heard Sri. B.Krishnan, the learned counsel for the appellant and Sri. M.Narendra Kumar the learned counsel for the respondent. 6. The points that arise for determination ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the agreement, even in a case where breach of the agreement was committed by him is well recognised under law. The claim cannot be negatived unless the vendor proves that he had suffered damages consequent on such breach. On proof of damages, such amount could be recovered. 8. With regard to the first part of the relief claimed, that is, a personal decree, Article 54 of the Limitation Act applies. The period provided is three years from the date of accrual of the cause of action. It is conceded before me, and rightly so, that the suit has been filed beyond that period. The trial court was right in having held that the first part of the claim is barred by limitation. 9. Coming to the second part of the relief, the plaintiff claims a decree charged on the plaint schedule property. The charge is one provided under Section 55(6) (b) of the Transfer of Property Act. When charge is claimed over the property, Article 62 of the Limitation Act applies and the plaintiff is entitled for a period of twelve years to institute the suit. Therefore, the suit seeking a charged decree over the plaint schedule property is well within the period of limitation. The trial court has not considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n refer to, "declining to accept delivery"; the first part states, 'unless he has improperly declined', and the second part says, 'when he properly declines'. The words "unless he has improperly declined", would suggest that it means "if he has properly declined". Obviously, in the light of the second part of the Section, that cannot be what is intended. When the words "unless he has improperly declined" occurring in the first part of the section and "when he properly declined" occurring in the second part of the section are considered side by side, they suggest three situations, (i) properly declined, (ii) improperly declined, and (iii) where there is neither a proper nor improper declining. Situations where the declining is proper has been taken care of in the second part of the section. Improper declining, as is evident on a plain reading of the section, negates charge. There could be cases where an agreement for sale does not go through for no fault of either the vendor or the vendee. So also, there could be instances where both the parties are at blame, both having contributed for the non-performance. May be the buyer was not too eager and the seller was not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operation of the provision contained in Section 55(6)(b). ....." In Videocon Properties Ltd v. Dr. Balachandra Laboratories & others, 2004(3)SCC 711, the Apex Court observed that, the principle underlying the provision is the trite principle of justice, equity and good conscience. 13. Thus understanding the scope of the first limb of Section 55(6)(b), it is held that, where the non-performance is not due to the fault of the buyer and the seller, or where both are at blame/default, or where the default occurred at the hands of the vendor, it cannot be said that the buyer has improperly declined to accept delivery and hence he is entitled for charge over the property for the purchase price paid and interest. Of course, whether interest is to be granted and if so at what rate are all matters for determination based on the facts of each case. 14. Bearing the above principle in mind I proceed to discuss the facts and evidence in the case. The learned counsel for the plaintiff would draw the attention of the Court to the averment at paragraph one of the plaint that, sale deed could not be executed in pursuance of Ext.A1 since late Rosamma-the predecessor of the defendants was unable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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