(Prayer: This Appeal suit has been filed under Order 41 Rule 1 read with Section 96 of CPC, against the judgment and decree of the Additional District Judge, Fast Track Court I, Erode dated 24.06.2010 and made in O.S.No.339 of 2007.)

1. Aggrieved over the dismissal of the suit, which has been filed for recovery of the advance amount paid pursuant to the agreement dated 28.11.1995, the present appeal came to be filed by the plaintiffs.

2. For the sake of convenience, the parties are referred to, as per their ranking before the trial Court.

3. Facts and circumstances giving rise to this appeal are:

(i) The defendants 1 to 6 and 9 to 11 and one Palanisamy, husband of the 7th defendant and father of the 8th defendant, agreed to sell the suit properties in favour of the plaintiffs for a total consideration of Rs.18,13,500/- (Rupees Eighteen lakhs Thirteen Thousand and Five Hundred only) and executed agreement dated 28.11.1995 and received a sum of Rs.5,00,000/- as advance. It is further agreed between the parties that the transaction shall be completed within six months from the date of agreement. The plaintiffs are always ready and willing to perform their part of contract from the date of the agreement itself. But the defendants neglected to perform their part of the contract by giving evasive replies.

(ii) Subsequently, the plaintiffs came to know that the defendants 1 to 11 have executed a sale deed in favour of the 12th defendant for a sum of Rs. 3,29,700/- which is grossly in adequate. The execution of the aforesaid sale was a fraudulent act of the defendants 1 to 12. Therefore, the plaintiffs issued a legal notice dated 30.06.2005 to the defendants 1 to 12 calling upon to pay the advance amount with interest at the rate of 12% p.a. However, the defendants sent a reply with false allegations for which the plaintiffs also sent a rejoinder dated 26.8.2005. Again on 15.9.2005, the 12th defendant sold the property in favour of 13th defendant. Thereafter, on 25.10.2007, the 13th defendant have executed the sale in favour of 14th and 15th defendant. According to the plaintiffs all the sale deeds are sham and nominal. The plaintiffs are entitled to recover a sum of Rs. 5,00,000/- (Rupees Five lakhs only) which was paid towards advance from the defendants. Therefore, they issued a legal notice to the defendants. Since no steps have been taken by the defendants to pay the aforesaid amount, the instant suit has been filed by the plaintiffs.

(iii) The defendants 1 to 9 filed a written statement admitting the agreement of sale in favour of the plaintiffs on 28.11.1995 and also receipt of amount of Rs.5,00,000/- on the date of agreement. But according to the defendants, the said amount was received towards earnest deposit and not towards sale consideration as alleged by the plaintiffs. Denying the allegation that the plaintiffs were always ready and willing to perform their part of contract, it is stated that time is the essence of contract and since the same expired on 25.9.1996, the contract became unenforceable. Due to subsequent fall in value of the suit properties, the defendants sold the properties in favour 12th defendant for fixed value. Non performance of the contract by the plaintiffs caused much loss to the defendants. In the additional written statement filed by the 9th defendant, it is stated that the suit is barred under Section 69 of the Partnership Act. Hence, the defendants 1 to 9 prayed for dismissal of the suit.

(iv) Defendants 10 and 11, while adopting the statement filed by the other defendants, contended that the suit is barred by limitation as the same ought to have been filed within three years from the date of agreement.

(v) The defendants 14 and 15 also contended that they purchased the property on 25.10.2007 from 13th defendant after giving due publication and that they are the bona fide purchasers and after the said purchase they made some improvements. Hence, they prayed for dismissal of the suit.

4. In view of the above pleadings, the following issues were framed by the trial Court:

1. Whether the suit is barred by limitation

2. Whether the plaintiffs have failed to perform their contract within the time

3. Whether the defendants 14 and 15 are the bona fide purchasers

4. Whether the plaintiffs are entitled to suit amount

5. Whether the plaintiffs are entitled for permanent injunction as prayed

6. To what relief

5. On the side of the plaintiffs, 1st plaintiff examined herself as P.W.1 and Exs.A1 to A22 were marked. On the side of the defendants, 9th and 14th defendants were examined as D.W.1 and D.W.2 respectively and Exs. B1 to B5 were marked.

6. After appreciating the oral and documentary evidence available on record, the trial Court has dismissed the suit on the ground that the suit is barred by limitation and that, no charge has been created over the suit properties. Aggrieved over the same, the present appeal came to be filed.

7. Learned counsel for the appellants/plaintiffs has submitted that a sum of Rs.5,00,000/- was paid on the date of agreement itself towards sale consideration but the sale could not be completed within the time as agreed between the parties. It is the contention of the learned counsel that the moment sale price is paid, statutory charge is created over the property towards purchase money in favour of the buyer and such a suit shall be governed by Article 62 of the Limitation Act. Therefore, it is the contention of the learned counsel that unless the conditions set out in Section 55(6)(b) of the Transfer of Property Act are established, a statutory charge created on the basis of the agreement will not be lost. Therefore, plaintiffs (buyers) are entitled for refund of the advance amount on the basis of principle governed under Section 55(6)(b) of the Transfer of Property Act, which is a trite principle of justice, equality and good conscience. The learned counsel for the appellants/ plaintiffs has strenuously contented that the Trial Court, without adverting to the aforesaid provision of law, has erroneously come to the conclusion that the suit is barred by limitation as limitation for recovery of advance amount is only three years. Hence, the learned counsel prayed for allowing the appeal.

8. To substantiate the above contentions, the learned counsel has placed reliance on the judgments reported in 2013 (6) CTC 28 (K.Shanmugam and another v. C.Samiappan and others); 2000 (1) CTC 507 SC (Delhi development Authority v. Skipper Construction Co., (P) Ltd.,); 2004 (3) SCC 711 [LQ/SC/2003/1333] (Videocon Properties Ltd., v. Dr.Bhalchandra Laboratories and others); 2016 (6) CTC 740 (P.Muthusamy v. K.Arumugam); AIR 1978 Calcutta 285 (Saidun Nessa Hoque and others v. Calcutta Vyapar Paratisthan Ltd.,) and AIR 1987 Rajasthan II, (Mst. Anchi and Others v. Maida Ram).

9. Per contra, the learned Senior Counsel appearing for the respondents/defendants vehemently opposed the appeal contending that in the agreement dated 28.11.1995, it is specifically agreed between the parties that the sale shall be completed within six (6) months and though the said time expired on 28.05.1996, the purchasers (plaintiffs) have not come forward to perform their part of the obligation. It is submitted that the plaintiffs have kept quiet till 2007. It is further submitted by the learned Senior Counsel that, in fact, the parties have specifically agreed in the agreement to the effect that if the purchasers (plaintiffs) failed to pay the remaining sale consideration within the agreed time, earnest money paid on the date of the agreement shall be forfeited. Hence, it is the contention of the learned Senior counsel that when the appellants/plaintiffs have specifically agreed that the advance amount would be forfeited if the transaction has not been completed within the time stipulated in the agreement, now they cannot contend that there is a charge over the property.

10. It is also the contention of the learned Senior counsel that from the year 1995, the appellants/ plaintiffs did not take any steps to perform their part of the contract whereas under Ex.B1, legal notice, the defendants, immediately after the expiry of the agreed time, had issued legal notice requesting the plaintiffs to pay the remaining consideration and to get the sale deed registered in their favour. Even at that point of time also, the plaintiffs did not show their readiness to take the property. Hence, according to the learned counsel, default has been committed by the plaintiffs alone as they have failed to perform their part of the contract. Therefore, now they cannot contend that the statutory charge is continuing and that they could enforce the same at any point of time. It is the contention of the learned Senior counsel that suit itself is filed only on 27.11.2007. The above aspect would clearly show that the suit is not maintainable for recovery of amount. Hence, submitted that the judgment and decree of the trial Court is well balanced and it does not require any interference.

11. In support of his arguments, the learned Senior counsel has placed reliance on the judgments reported in 1993 (1) SCC 519 [LQ/SC/1992/916] (Chand Rani v. Kamal Rani); AIR 1970 SCC 1955 (1) (Maula Bux v. Union of India); and 2013 (1) TNCJ 426 (SC) (Satish Batra v. Sudhir Rewal).

12. In the light of the above submissions, now the points that arise for consideration in this appeal are:

1. Whether the statutory charge created over the property for the price paid by the buyer (plaintiffs) was continuing on the date of the suit

2. Whether the plaintiffs are entitled to recover the suit amount as claimed

3. Whether the lower was right in holding that the suit fails on the ground of limitation since the suit has not been filed within a period of three years

4. To what relief

Points 1 to 4:

13. The suit has been laid for recovery of a sum of Rs.5,00,000/-, which has been paid as advance on the date of agreement of sale dated 28.11.1995, with subsequent interest. It is the main contention of the appellants/plaintiffs that the defendants 1 to 6 and 9 to 11 and one Palanisamy have agreed to sell the suit properties for a total sale consideration of Rs.18,13,500/- and also received a sum of Rs.5,00,000/- advance on the date of agreement itself and the plaintiffs were always ready and willing to purchase the suit properties from the defendants and that they have performed their part of the contract. Whereas it is the contention of the defendants that the agreement itself was lapsed and the plaintiffs were never ready and willing to perform their part of the obligation as specifically agreed between parties. Hence, it is the contention of the defendants that the suit is barred by limitation. It is also the main contention of the defendants that since the plaintiffs failed to perform their part of the contract within the time agreed between them, the earnest money paid by the plaintiffs would be forfeited as per the specific clause stipulated in the agreement.

14. It is not in dispute that the defendants 1 to 6 and 9 to 11, originally entered into a contract with the plaintiffs for sale of the properties for a total consideration of Rs.18,13,500/-. Similarly, it is also not in dispute with regard to the receipt of payment of Rs.5,00,000/- by the defendants. Admittedly, the defendants 12 to 14 are the subsequent purchasers of the suit properties. Ex.A1, sale agreement dated 28.11.1995 entered into between the parties, would show that, in fact, parties have made a time as an essence of the contract. The defendants received a sum of Rs.5,00,000/- as advance towards. The recitals in the document would clearly show that on the date of agreement, the amount of Rs.5,00,000/- has been received by the defendants only towards sale consideration and not towards earnest deposit as pleaded by the defendants. A specific clause contained in the agreement is that that if the sale has not been finalised within six months as agreed between the parties, the advance amount shall be forfeited and the contract cannot be enforced.

15. The contention of the defendants that the amount of Rs.5,00,000/-, which has been paid towards earnest money on the date of agreement, was forfeited, cannot be countenanced in view of the judgment of the Honble Apex Court in Satish Batra v. Sudhir Rewal (cited supra) because in the agreement itself, it is clearly agreed between the parties that the amount has been received as advance towards sale consideration. In the aforesaid judgment, since the earnest money was primarily a security for due performance of the agreement, the Honble Supreme Court has held that the buyer is entitled to forfeit the entire deposit. In other words, if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply.

16. In the above background, when the agreement Ex.A1, is carefully read, the parties have, in fact, concluded the sale price by entering into the said agreement. The parties have also agreed to complete the sale within six months from the date of agreement i.e. 28.11.1995, that means time fixed for completion of sale is on or before 28.5.1996. It is further agreed between the parties that within the aforesaid time stipulated, the property shall be measured by both sides. It is also agreed between the parties, that the plaintiffs are also entitled to make roads and divide the property as plots and get the approval from the Government for sale of the properties. Admittedly, within the time as agreed between the parties, the sale could not be finalised and hence, Ex.B1, legal notice dated 06.8.1996, has been issued by the defendants immediately after the expiry of time agreed between the parties in Ex.A1 stating that they are always ready and willing to execute the sale deed. But despite their repeated demands, the plaintiffs failed to give a draft sale deed in order to get the income tax clearance certificate. It is also pleaded in the legal notice that at that time the plaintiffs have pleaded their inability to perform their part of the contract on the ground that they could not pay the balance sale consideration. Finally, the defendants have given time to pay the remaining sale consideration till 31.8.1996. The above notice was replied by the plaintiffs on 11.9.1996 contending that one of the settlement deed relating to the property has not been handed over and that the property has not been measured and the sale price has not been fixed after measuring the property.

17. It is pertinent to note that in the agreement, it is specifically agreed by both sides to measure the properties within the period of time agreed in the agreement. But nothing has been placed before the Court to show that the plaintiffs have taken steps at the relevant point of time to compel the defendants to measure the properties.

18. Be that as it may, after Ex.B2, legal notice dated 11.09.1996, the plaintiff kept quiet for more than ten (10) years, without performing their part of the contract. In the pleadings also, except stating that they were ready and willing to purchase the property at the relevant time, they never pleaded what was the steps which they have taken during contract to perform their obligation. Even in the chief examination, P.W.1s evidence is silent about that aspect. In the cross examination, P.W.1 has admitted that she does not know whether they have taken any steps to get the approval from the Government to convert the suit properties as flats. P.W.1 also admitted that on 06.8.1996 itself, the defendants were ready and willing to sell the property and they also issued legal notice on that aspect.

19. From the evidence of P.W.1, it could be easily seen that, after entering into contract on 28.11.1995 and paying a sum of Rs.5,00,000/- as advance towards the sale consideration, the plaintiffs have not taken any steps to perform their part of the contract. They never shown their readiness and willingness during the relevant period. Whereas the defendants have issued legal notice, Exs.B1, dated 11.09.1996 showing their readiness to execute the sale deed in favour of the plaintiffs. But the plaintiffs except sending legal notice under Ex.B1, have not taken any steps to get the sale registered in their favour. Whereas for the first time, under Ex.A6 dated 30.6.2005, almost after a lapse of 10 years, the plaintiffs have issued notice to the defendants for return of Rs.5,00,000/-, which has been paid on the date of agreement, and the same was also replied by the defendants.

20. It is to be noted that the defendants, in fact, have expressed their readiness to execute the sale deed in favour of the plaintiffs even in the year 1996 i.e. within the period of agreed time. But, only the plaintiffs without any reasons, did not take steps to get the property registered in their name. Though they contend that the property has not been properly measured in the reply sent to Ex.B2 notice, oral evidence and in the pleadings, this aspect was silent. When the sellers themselves expressed their readiness to execute the sale deed and to convey the property in favour of the plaintiffs, the plaintiffs ought to have taken some steps to execute the sale deed in their favour. Whereas they simply kept quiet for more than 10 years i.e. till the issuance of the legal notice for recovery of amount in the year 2005.

21. Suffice to state that it is settled position of law (Section 55(6)(b) of the Transfer of Property Act) that the moment the purchase money has been paid, charge is created over the property for the price paid by the buyer and that the charge would be continued and is only lost in the case of buyers commits default.

22. In this context, it is useful to refer the judgments of the Honble Supreme Court reported in Videocon properties Ltd., v. Dr.Bhalchandra Laboratories and Others (cited supra), wherein the Honble Supreme Court has observed as follows:

13. The buyers charge engrafted in clause (b) of paragraph 6 of Section 55 of the Transfer of Property Act would extend and enure to the purchase-money or earnest money paid before the title passes and property has been delivered by the purchaser to the seller, on the sellers interest in the property unless the purchaser has improperly declined to accept delivery of property or when he properly declines to accept delivery including for the interest on purchase money and costs awarded to the purchaser of a suit to compel specific performance of the contract or to obtain a decree for its rescission. The principle underlying the above provision is a trite principle of justice, equity and good conscience. The charge would last until the conveyance is executed by the seller and possession is also given to the purchaser and ceases only thereafter. The charge will not be lost by merely accepting delivery of possession alone. This charge is a statutory charge in favour of a buyer and is different from contractual charge to which the buyer may become entitled to under the terms of the contract, and in substance a converse to the charge created in favour of the seller under Section 55(4)(b). Consequently, the buyer is entitled to enforce the said charge against the property and for that purpose trace the property even in the hands of third parties and even when the property is converted into another form by proceeding against the substituted security, since none claiming under the seller including a third party purchaser can take advantage of any plea based even on want of notice of the charge. The said statutory charge gets attracted and attaches to the property for the benefit of the buyer the moment he pays any part of the purchase money and is only lost in case of purchasers own default or his improper refusal to accept delivery. So far as payment of interest is concerned, the section specifically envisages payment of interest upon the purchase-money/price prepaid, though not so specifically on the earnest money deposit, apparently for the reason that an amount paid as earnest money simplicitor, as mere security for due performance does not become repayable till the contract or agreement got terminated and it is shown that the purchaser has not failed to carry out his part of the contract, and the termination was brought about not due to his fault, the claim of the purchaser for refund of earnest money deposit will not arise for being asserted.

14. The further aspect that requires to be noticed is as to the nature and character of earnest money deposit and in that context the distinguishing features, which help to delineate the differences, if any. The matter is not, at any rate, res integra. In (Kunwar) Chiranjit Singh vs. Har Swarup [AIR 1926 P.C. 1], it was held that the earnest money is part of the purchase price when the transaction goes forward and it is forfeited when the transaction falls through, by reasons of the fault or failure of the purchaser. This statement of law had the approval of this Court in Maula Bux vs. Union of India [AIR 1970 SC 1955 [LQ/SC/1969/284] ]. Further, it is not the description by words used in the agreement only that would be determinative of the character of the sum but really the intention of parties and surrounding circumstances as well, that have to be looked into and what may be called an advance may really be a deposit or earnest money and what is termed as a deposit or earnest money may ultimately turn out to be really an advance or part of purchase price. Earnest money or deposit also, thus, serves two purposes of being part payment of the purchase money and security for the performances of the contract by the party concerned, who paid it. .. ..

In view of the above, the law on the submission can be summarised to the effect that a statutory charge created gets attracted and attaches to the property for the benefit of the buyer and is only lost in the case of purchasers own default or his improper refusal to accept delivery.

23. Similarly, in Delhi Development Authority v. Skipper Construction Co.(P) Ltd., and others (cited supra), the Honble Supreme Court has held that in the absence of a contract to the contrary, the buyer will have a charge on sellers interest in the property, which is the subject matter of the sale agreement insofar as the purchase money and interest on such amount are concerned, unless the buyer has improperly declined to accept delivery. It has been further held that charge under Section 55(6)(b) is a statutory charge and differs from a contractual charge.

24. In K.shamugam and another v. C.Samiappan and others (cited supra), the learned single judge of this Court by relying upon the judgment of the Honble Supreme Court referred above, has held that as regards the charge, Art.62 of the Limitation Act is applicable.

25. In (P.Muthusamy v. K.Arumugam) the learned single judge of this Court, after taking into consideration the ratio laid down by the Honble supreme Court in the judgment referred above, has held that limitation to enforce charge is 12 years and for recovery of refund of advance amount would be governed under Article 62 of the Limitation Act.

26. In Saidun Nessa Hoque and others v. Calcutta Vyapar Paratisthan Ltd., the High Court of Calcutta, in paragraph 44, has held as follows:

44. It seems to me that under S. 55 of the T. P. Act the moment earnest money is paid it forms a charge on the immovable property. This is the position under the Indian Law. It follows that it is a charge for repayment of the earnest money. If that is so, how far this is consistent with the right of forfeiture of deposit as laid down in the judgment in the English cases Under S. 55 (6) the buyer has a charge on the immovable property not only for the purchase money but also for the earnest. It is a statutory charge. The buyer will be entitled to the statutory charge in respect of the purchase money unless he has improperly declined to accept delivery of the property and for the earnest when he properly declines to accept delivery. It follows, therefore, that under the subsection unless the buyer properly declines to accept delivery the charge for the earnest money will remain from the time of payment. This section, however, begins with the words "In the absence of the contract to the contrary". So, if there is a contract contrary to S. 55 (6), namely, if the parties expressly stipulate that the purchase money will not form the charge on the property or it will be released from the charge on certain circumstances or that earnest money would be forfeited under certain circumstances the provisions of sub-sec. (6) will not be attracted. But mere fact that money is described as earnest does not make the contract to the contrary within the meaning of this sub-section. It seems to me that mere use of the word earnest would not be sufficient to exclude the operation of S. 55 (6).Admittedly, there is no express term to the contrary in the facts of the present case. There is also no evidence as to whether the parties by using the word earnest excluded the operation of sub-sec. (6). These are all questions of fact. Therefore, the rule in sub-sec. (6) would be attracted, viz., that the buyer will be entitled to the benefit of charge unless the buyer properly (improperly) declines to accept delivery. It follows, therefore, that if the buyer improperly declines to accept delivery he is not entitled to a charge under sub-sec. (6). So, although, this is a statutory charge under S. 55 (6), but to answer whether the seller can forfeit the earnest, ultimately, the same question arises, viz., has the buyer repudiated the contract

45. Mr. Bhabra has relied on the decision of the Privy Council in Chiranjit Singh v. Har Swarup, AIR 1926 PC 1 and submitted that there was forfeiture of earnest money in case of immovable property in that case. But it should be noted that in the facts of that case the buyer of the immovable property was unable to purchase the same due to certain unavoidable circumstances and informed the same to the seller by telegram. On the admitted facts of that case, the transaction failed due to default or failure of the purchaser. So, no question of charge under S. 55 (6) of the T. P. Act arose or could arise under the facts of that case. .. ..

27. In Mst. Anchi and Others v. Maida Ram, the High Court of Rajasthan has taken a similar view. In paragraph 9, it has been held as follows:

9. Section 55 of the Transfer of Property Act deals with rights and liability of buyer and seller and Sub-clause (b) of Sub-section (6) while dealing with the rights of buyer lays down that "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 sellers interest in the property, for the amount of any purchase-money properly paid by buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (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"... ..

A conjoint reading of above judgments and Section 55(6)(b) of the Transfer of Property Act, make it clear that for the money paid by the buyer before the title passes, a statutory charge will be created and attached to the property and such a charge will be lost in case of purchasers own default and in case he refused to accept delivery. The charge attaches to the property from the moment he pays the purchase money and is only lost in case of his own subsequent default. Therefore, under Section 55(6)(b) unless buyer improperly declines to accept delivery or properly decline to delivery the charge for the amount paid will remain from the time of payment. The above judgments also makes it clear that statutory charge arises only when the buyer show that he has not improperly declined to accept delivery of the property or he properly declined to accept delivery.

28. Section 54 of the Transfer of Property Act shows that mere agreement itself does not create any interest or charge in the property. Section 54, in fact, requires an act of parties for creating any right or interest in any such property, meaning thereby, mere simple agreement for sale would not create any charge. Whereas Section 55(6)(b) of the Transfer of Property Act, otherwise creates a statutory charge, which can be said to have been created by the act of parties. The charge created under Section 55(6)(b) also depends upon certain contingencies that when buyer has improperly declined to accept delivery of the property or when he properly declines to accept delivery. As already cited, in the judgment of Videocon Properties Ltd., v. Dr.Bhalchandra Laboratories (cited supra) it has been clearly observed that statutory charge gets attracted for the benefit of the buyer the moment, the purchaser pays purchase money and is only lost in case of his own default or his improper refusal to accept delivery.

29. In view of the aforesaid case laws, the factual matrix of the present case is examined, it is seen that Ex.B1 dated 06.8.1996, the sellers (defendants) have, in fact, agreed to deliver the property by executing sale deeds in favour of the plaintiffs. They also expressed their willingness to register the property in favour of the plaintiffs on or before 31.8.1996 provided the plaintiffs pays the remaining sale consideration. The intention of the defendants coming forward to execute the sale deed itself clearly indicate that they are ready and willing to deliver the property to the buyer (plaintiffs) at the relevant time. Despite the fact of the readiness shown by the respondents herein i.e. defendants not only to execute the sale deed but also delivery of the property, the appellants herein (plaintiffs) improperly declined to accept the sale deed and delivery at the relevant time.

30. Thus, it is crystal clear that only the plaintiffs have committed default and for the first time, in the year 2005 only they sent a legal notice. Therefore, this Court is of the view that even though statutory charge has been created in respect of the agreement, it has been lost due to subsequent default by the plaintiffs. In fact, they failed to get the sale deed executed in their favour and take delivery, in spite of readiness shown by the respondents. Therefore, it is clear that due to their (plaintiffs) own default, the statutory charge attached with the property has been lost. Therefore, the plaintiffs cannot now contend that they are entitled to recover the amount paid by them.

31. Having regard to the above settled position of law and taking into consideration the factual situation of this case, this Court is of the view that finding of the trial Court holding that the limitation to enforce charge is for three years cannot be sustained in law in view of the period of limitation governed under Article 62 of the Limitation Act. Admittedly, Article 62 of the Limitation Act prescribes 12 years period for filing the suit to enforce charge. However, in view of the conduct of the plaintiffs, i.e. in view of their own default the charge created over the property has been lost, the suit for recovery of money has necessarily to fail. As extracted above, in Videocon properties limited case, the Honble supreme Court has categorically held that the charge gets attracted and attaches to the property for the benefit of the buyer the moment he pays any part of the purchase money and is only lost in case of purchasers own default or his improper refusal to accept delivery.

32. In the instant case also, the plaintiffs conduct for not performing their obligation and their failure to get the sale deed registered in their favour in spite of their defendants willingness, in fact, leads to an inference that they refused to accept the transfer of property and also delivery of possession in their favour. Hence, now they cannot seek for recovery of money.

33. It is to be noted that the suit has been filed in the last day of limitation i.e. 27.11.2007 that too without requisite fee. Admittedly, the Court fee has been paid subsequently. This fact shows that the suit is nothing but speculation.

34. It is further to be noted that Ex.B1, legal notice, was issued by one Advocate of Erode, in the year 1996, calling upon the plaintiffs to get conveyance deed immediately which, was replied by the plaintiffs. Subsequently, the same advocate, has filed the instant suit on behalf of the plaintiffs. The conduct of the aforesaid counsel, who has sent legal notice on behalf of the defendants in the year 1996, filing the instant suit on behalf of plaintiffs, against whom the legal notice was sent by him earlier, that too, in the last date of limitation and without even paying the necessary court fees, is highly deprecated and the same is against the legal ethics. In fact there was conflict of interest. I found that conduct of practice of law is nothing but professional misconduct for breach of rules relating to professional conduct of advocates for the reasons aforesaid. Of course, above conduct of the advocate is not germane for consideration of the instant appeal. However, this Court expresses its anguish about the unfairness on the part of the counsel in dealing with the matter.

35. In any event, the suit for recovery of money cannot be maintainable in view of the fact that statutory charge created for the price money has been lost due to plaintiffs own default. Accordingly these points are answered.

36. In the result, though the finding of the trial Court holding that the limitation to enforce charge is for three years is hereby set aside, the appeal is dismissed and the judgment and decree of the trial Court dismissing the suit is hereby confirmed on the aforesaid factual aspects. No costs. Consequently, connected miscellaneous petition is closed.