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2024 DIGILAW 243 (MAD)

Pothys Rep. by Partner S. Murugesh v. S. A. Kumar

2024-01-24

J.SATHYA NARAYANA PRASAD

body2024
ORDER : The civil revision petition is filed challenging the order passed in I.A.No.505 of 2018 in O.S.No.290 of 2017 dated 07.11.2019 by the IV Additional District & Sessions Judge, Coimbatore whereby dismissed the petition filed under Order 7 Rule 11 of Civil Procedure Code seeking to reject the plaint filed by the plaintiff. 2. The revision petitioner is the 6th defendant and the auction purchaser of the property. The suit O.S.No.290 of 2017 was filed by the 1st respondent/plaintiff, thereafter I.A.No.505 of 2018 in O.S.No.290 of 2017 was filed by the revision petitioner/6th defendant to reject the plaint filed by the 1st respondent/plaintiff and the same was dismissed by the trial Court. Challenging the said order, the civil revision petition has been filed. I.A.No.505 of 2018 was filed to reject the plaint, since the suit is barred under SARFAESI Act. The learned Senior Counsel appearing for the petitioner submitted that there was a sale agreement on 04.03.2009 between the 1st respondent/plaintiff and the respondents 2 to 5. The total sale consideration was a sum of Rs.2,34,00,000/- (Rupees Two Crores and Thirty Four Lakhs Only) out of which Rs.1.17 crores were paid and as per the sale agreement the sale has to be completed on 31.08.2009. The petitioner is the auction purchaser in the Bank sale and the sale consideration was a sum of Rs.2.25 crores. The sale certificate dated 08.11.2010 was issued and the subject matter of the property was already mortgaged with the State Bank of India. The amendment in the SARFAESI Act came into effect on 04.11.2016, according to which under Section 8 (5) d of the Security Interest (Enforcement) Rules, 2002 the property can be sold by private treaty. The learned Senior Counsel further submitted that the 1st respondent/plaintiff has ventured upon to initiate vexatious litigation by way of a civil suit, after exhausting his remedy before this Court by filing a writ petition in W.P.No.27808 of 2010 and also by filing an application in S.A.No.48 of 2010 before the Debts Recovery Tribunal under Section 17 of the SARFAESI Act. The suit is filed effectively seeking to defeat the rights of the petitioner, being an auction purchaser of the property under the SARFAESI Act, claiming that a charge is created on an alleged sale agreement when the jurisdiction of the civil court is expressly barred under Section 34 of the SARFAESI Act. 3. The suit is filed effectively seeking to defeat the rights of the petitioner, being an auction purchaser of the property under the SARFAESI Act, claiming that a charge is created on an alleged sale agreement when the jurisdiction of the civil court is expressly barred under Section 34 of the SARFAESI Act. 3. The learned Senior Counsel further submitted that the suit was filed by the 1st respondent/plaintiff in the year 2017 seeking for a recovery of money and an order of permanent injunction against the petitioner and the respondents 2 to 6 based on the unenforceable/time barred alleged Sale Agreement dated 04.03.2009, said to have been entered into between by the first and second respondents and his father in respect of a property, which has been purchased by the petitioner under the provisions of SARFAESI Act by way of a private treaty, in and by a Sale Certificate dated 08.11.2010. The following is the extract of the suit relief in O.S.No.290 of 2017. a) by directing the defendants to pay a sum of Rs.2,81,60,050/- with subsequent interest on Rs.1,17,00,000/- from the date of plaint till date of payment. b) by passing an order of permanent injunction restraining the defendants and their men and agents from in anyway encumbering or alienating the suit property till the payment of suit amount. c) declaring that the legal charge created over this scheduled property is subsisting as on date for the amount paid by the plaintiff. d) directing the defendants to pay the cost of this suit. 4. The suit relief for recovery of money is based on the sale agreement dated 04.03.2009 and hence the suit is filed in the year 2017 is clearly barred in law. The learned Senior Counsel further submitted that the charge in terms of Section 55 (6) (b) of the Transfer of Property Act can be claimed in the absence of Contract to the Contrary and the pleadings in the plaint would clearly go to show that there is a pre existing mortgage and the borrower had to obtain necessary “No Objection Certificate” from the Secured Creditor/Bank and hence there is a contract to the contrary and hence no charge could be claimed. He further submitted that the trial Court failed to consider the well settled position of law that the subsisting mortgage over the property and the admitted pleadings of the plaintiff as to obtain No Objection Certificate is the contract to the contrary by which the plaintiff cannot plead of any statutory charge for the alleged sale consideration by the buyer and hence the plea of charge on the property is contrary to the pleadings in the plaint and self destructive. The trial Court on a clear misconception of law referred to the decisions reported in SC – 2000 (1) CTC Page 507, 2019 (2) CTC 737 , 2017 (1) MLJ – Page 266, AIR 2010 Madras 68, AIR 2009 Madras 74, by presuming the statutory charge and therefore applying Article 62 when on the face of record the same has no application and the suit to be considered only as suit for a recovery of money in terms of prayer and being barred by limitation. The trial Court has held that the suit is enforcement of such charges and therefore held that suit is under Article 62 of Limitation Act. The prayer does not seek for enforcement of any legal charge but rather seeks for a declaration of the alleged charge. The said relief of declaration has to be within three year under Article 58 of Limitation Act and therefore the finding that the suit is within time in terms of Article 62 is erroneous and untenable in law and on facts. 5. The learned Senior Counsel further submitted that the bare reading of the plaint clearly discloses no cause of action for the suit and the reliefs are clearly barred by limitation and by a special statute by an express provision barred the jurisdiction of the Civil Court. The alleged sale agreement which is the basis for the 1st respondent/plaintiff to file the suit, said to have been entered into between the 1st and 2nd respondents and his father when the property is under subsisting mortgage with the 5th & 6th respondents. The alleged sale agreement which is the basis for the 1st respondent/plaintiff to file the suit, said to have been entered into between the 1st and 2nd respondents and his father when the property is under subsisting mortgage with the 5th & 6th respondents. Admittedly, the 1st respondent failed to enforce the agreement and the 2nd respondent failed to redeem the property hence the 5th & 6th respondents while enforcing the mortgage had sold away the subject property under the SARFAESI Act for realising their legitimate dues and having allowed to sale of the property, the first respondent is not entitled to maintain the suit based on the time barred claim. The 1st respondent/plaintiff is trying to prevent the rights of the petitioner acquired under the sale certificate and had come forward with the suit, having approaching the DRT under the statute. 6. The learned Senior Counsel further submitted that the 1st respondent is seeking to give life to the time barred debt based on the alleged sale agreement of the year 2009 when the same is not enforced within the period of limitation. That apart the 1st respondent is not entitled to file a suit on the basis of the said time barred claim, more particularly against the Bank and the purchaser. The 1st respondent in order to maintain the suit has also pleaded the alleged legal charge over the subject property. Further the limitation under Article 62 of Limitation Act will not apply as the property already mortgaged with the 5th & 6th respondents when the same has already been enforced for realising their dues and all such contentions have arisen only after the property is sold and the third party interest is created. The trial Court has committed a grave error having recorded the point for consideration whether suit is barred by limitation and whether the suit is barred under Section 34 of SARFAESI Act and has not given any finding to the same. That apart the trial Court has mechanically relied upon the decisions of the Hon'ble Apex Court as well as this Court by extracting the findings in the decisions and passed the impugned order of dismissing the application filed by the petitioner and the same is liable to be set aside. 7. That apart the trial Court has mechanically relied upon the decisions of the Hon'ble Apex Court as well as this Court by extracting the findings in the decisions and passed the impugned order of dismissing the application filed by the petitioner and the same is liable to be set aside. 7. The learned Senior Counsel further submitted that while deciding the application under Order 7 Rule 11 of CPC the plaint averments should be looked into and the said finding is against the well established legal principles of law and the same would defeat the very object of the enactment, if the rejection of plaint has to be dismissed on merely observing such vague findings. The trial Court held that the suit is not barred by limitation and then the full fledged trial is necessary to decide the other issues like Resjudicata and whether any fraud is committed etc. The question of limitation has to be seen from the pleadings in the plaint, prayer sought for and the cause of action pleaded. In the instant case, the pleading, documents and the prayer clearly go to show that the suit claims in respect of first relief is clearly barred by limitation and the 1st respondent pleadings in the cause of action paragraph clearly establishes that the suit is beyond the period of limitation. 8. The learned Senior Counsel drew the attention of this Court to paragraph Nos.X, XI, XX & XXI of the plaint and the same are extracted as hereunder. X. The first defendant has also received a sum of Rs.20,00,000/- (Rupees Twenty Lakhs Only) as further advance from this plaintiff on 21.04.2010. The first defendant has also issued a receipt dated 21.04.2010 in favour of the plaintiff for a sum of Rs.20,00,000/- XI. The plaintiff has also paid a sum of Rs.20,00,000/- (Rupees Twenty Lakhs Only) to one C.G.Radhakrishnan as directed by the first defendant on 21.04.2010. The first defendant has also issued a receipt dated 21.04.2010 in favour of the plaintiff for a sum of Rs.20,00,000/-. Hence the plaintiff has totally paid a sum of Rs.1,17,00,000/- as advance part of the sale consideration amount. The plaintiff has to pay the balance of sale consideration amount of only Rs.1,17,00,000/- (Rupees One Crore Seventeen Lakhs Only). XX. The first defendant has also issued a receipt dated 21.04.2010 in favour of the plaintiff for a sum of Rs.20,00,000/-. Hence the plaintiff has totally paid a sum of Rs.1,17,00,000/- as advance part of the sale consideration amount. The plaintiff has to pay the balance of sale consideration amount of only Rs.1,17,00,000/- (Rupees One Crore Seventeen Lakhs Only). XX. It is submitted that this plaintiff once again approached the 1st defendant in the second week of December 2010 and requested him to take up the issue with defendants 4 and 5 for completion of the sale after receiving the balance consideration. It was only then that the 1st defendant informed the plaintiff that defendants 4 and 5 had already sold the property at No.57 Vysyal Street, Coimbatore to the 6th defendant on 08.11.2010 itself. This came as a rude shock to the plaintiff since he had agreed to purchase the property only in the insistence of defendants 4 and 5 and had invested more than Rs.35 lakhs towards the same. The plaintiff was always ready and willing to settle the dues to the 4th defendant Bank and the defendants 4 and 5 were fully aware of the fact that it was only the plaintiff who had remitted the sum of Rs.35 lakhs towards the loan amount and that he was a prior agreement holder in respect of the said property. It is apparent that a fraud has been played on the plaintiff by all the defendants with a view to somehow deprive him of the property. None of the procedures contemplated under the SARFAESI Act 2002 prior to the alleged sale of the property have been followed by the 4th defendant and the entire transaction of sale is vitiated by fraud and collusions. No prior sale notice was issued and infact, the sale certificate issued by the 4th defendant and the entire transaction of sale is vitiated by fraud and collusions. No prior sale notice was issued and infact, the sale certificate issued by the 4th defendant in favour of the 6th defendant does not even bear the date on which the sale is alleged to have taken place. The 1st defendant has actively colluded with the other defendants in bringing about the fraudulent sale in favour of the 6th defendant. No prior sale notice was issued and infact, the sale certificate issued by the 4th defendant in favour of the 6th defendant does not even bear the date on which the sale is alleged to have taken place. The 1st defendant has actively colluded with the other defendants in bringing about the fraudulent sale in favour of the 6th defendant. In fact the plaintiff, in addition to the sum of Rs.35 lakhs paid by him has incurred expenditure to the tune of more than 75 lakhs in discharging various other debts of the 1st defendant so as to avoid any future claim from any creditors in respect of the said property. It is apparent that all the defendants have clandestinely and intentionally brought the alleged sale transaction with a view to defeat the plaintiff's right over the property and to help the 6th defendant. The 6th defendant is not a bonafide purchaser of the property and he has ventured into the transaction with full knowledge of the existing sale agreement in favour of the plaintiff and the right of the plaintiff over the suit property. In as much the alleged sale in favour of the 6th defendant is vitiated by fraud and collusion the plaintiff has constrained to file application before the Debts Recovery Tribunal, Coimbatore in S.A.No.118/2010 to declare the sale certificate dated 08.11.2010 issued by the 4th defendant in favour of the 6th defendant in respect of the scheduled property is void and illegal and directing the 4th defendant to receive the balance sum of Rs.1,14,00,000/- from the plaintiff and consequent to hand over the original title deeds pertaining to the suit scheduled property to the plaintiff. XXI. It is submitted that this Plaintiff has totally paid a sum of Rs.1,17,00,000/- as part of sale consideration to the 1st defendant on several dates as stated above. It is submitted that once the advance amount and part of sale consideration is paid a legal charge will be created on the property proposed to be sold. The charge will be created immediately on payment of money as part of sale consideration amount. Hence in this matter the legal charge has been created even on 04.03.2009 itself immediately on payment of Rs.10,00,000/-. A legal charge has been created over this property for the entire amount of Rs.1,17,00,000/- paid by this plaintiff. The charge will be created immediately on payment of money as part of sale consideration amount. Hence in this matter the legal charge has been created even on 04.03.2009 itself immediately on payment of Rs.10,00,000/-. A legal charge has been created over this property for the entire amount of Rs.1,17,00,000/- paid by this plaintiff. The legal charge is enforceable against the defendants as the legal charge as the liability run with the property. Though the 4th defendant has issued sale certificate in favour of the 6th defendant the liability of returning the sale consideration amount will not lost and the defendants are liable to pay (return) the sale consideration amount paid by the plaintiff as they happened to be the party to the sale agreement, legal heirs of the deceased E.Purushothaman and person in possession of the property by effecting fraudulent sale when the legal charge is subsisting over the suit property. 9. The last payment made by the 1st respondent/plaintiff was on 21.04.2010. In the affidavit filed on behalf of the petitioner/6th defendant in I.A.No.505 of 2018, it is stated that it can be seen from the reliefs and pleadings, the respondent has aggrieved by the sale of the property under SARFAESI Act and the cause for the reliefs is based on the said sale. It is relevant to extract paragraph Nos.5, 6, 8 & 11 of the affidavit and the same is extracted hereunder:- 5. I submit that one E.Purusothaman, the father of 1st & 3rd defendants and husband of 2nd defendant has availed financial assistance from the 4th defendant and mortgaged several properties including the property mentioned in the suit schedule for the loan. Since he has failed to discharge the loan the 4th defendant through the 5th defendant. The authorised officer has initiated the recovery proceedings under the SARFAESI Act and we have offered to purchase the schedule mentioned property for a sum of Rs.2,52,00,000/- (Rupees Two crores fifty two lakhs only) under the private treaty as provided under SARFAESI Act and the bank has also agreed to the same. We paid the entire amount and the authorised officer has executed the sale certificate to us as per the powers conferred upon him by the SARFAESI Act. 6. I submit that the respondent/plaintiff has also filed an application in S.A.No.118 of 2010 before the Hon'ble DRT Coimbatore challenging the sale. We paid the entire amount and the authorised officer has executed the sale certificate to us as per the powers conferred upon him by the SARFAESI Act. 6. I submit that the respondent/plaintiff has also filed an application in S.A.No.118 of 2010 before the Hon'ble DRT Coimbatore challenging the sale. The SA was dismissed for default on 02.04.2014. The respondent/plaintiff has filed applications to restore the same along with an application to condone the delay of 870 days delay in filing the application in I.A.No.288 of 2017 and is pending for orders. 8. I submit that we have purchased the property sold under the SARFAESI Act and as such the suit is not maintainable in respect of any action initiated under the SARFAESI Act and the jurisdiction of the civil court is expressly barred under Section 34 of SARFAESI Act, which is already held by High Courts and Apex Court. 11. I submit that since the property purchased by us was mortgaged with the 4th defendant and the same was sold under the SARFAESI Act, the present suit is barred by law. The alleged legal charge and limitation under Article 62 of the Limitation Act will not apply as the property already mortgaged to the bank and the same is sold by a competent authority to enforce the mortgage. Hence the property cannot be held as a legal charge. 10. The learned Senior Counsel further drew the attention of this Court to the statement of objections filed by the 1st respondent/plaintiff and the relevant paragraphs are extracted hereunder:- 15. Hence the property cannot be held as a legal charge. 10. The learned Senior Counsel further drew the attention of this Court to the statement of objections filed by the 1st respondent/plaintiff and the relevant paragraphs are extracted hereunder:- 15. It is submitted that this respondent has raised a specific plea before the Debt Recovery Tribunal at the time of argument in M.I.A No.288/2016 in S.A.No.118/2010 that the plaintiff has to approach Civil Court and he has no locus standi to file any application before DRT and the same has been recorded by the Hon'ble DRT, Coimbatore in its judgment in para 5 that: “Accordingly as the applicant claimed to set aside the sale on the ground that he was an agreement holder for sale and was entitled to file the SARFAESI application for which the remedy is available before the Civil forum by filing a specific performance suit and it was only a document to get another document and such holding of a document would not in any way affect the sale certificate executed by the 1st respondent (State Bank of India) in favour of the 5th respondent (Pothys)”. Now the petitioner has taken a “U” turn and stated herein that the plaintiff cannot approach civil court which is barred. 16. It is submitted that the Hon'ble Debt Recovery Tribunal also categorically held giving its finding in last Para that the “remedy of the applicant is elsewhere, if it is so advised” by its order. 11. The SARFAESI appeal was dismissed by the DRT on 02.04.2014 even after that three years was over on 02.04.2017 whereas the suit was filed in the year 2017. Further, the learned Senior Counsel drew the attention of this Court to Paragraph No.26 of the plaint and the same is extracted as hereunder:- XXVI. Since the legal charge has been created over this suit property, the period for returning of sale consideration amount is 12 years as per article 62 of the Limitation Act, the suit claim is not barred by limitation. 12. Hence the contentions of the learned Senior Counsel appearing for the revision petitioner are as follows:- 1. There is no 1st charge created by the 1st respondent/plaintiff as claimed, since the property was already mortgaged with the 5th & 6th respondents/ State Bank of India. 2. The 1st respondent/plaintiff is not entitled to recover the money from all the defendants. 3. There is no 1st charge created by the 1st respondent/plaintiff as claimed, since the property was already mortgaged with the 5th & 6th respondents/ State Bank of India. 2. The 1st respondent/plaintiff is not entitled to recover the money from all the defendants. 3. The 1st respondent/plaintiff cannot recover the money from the Bank since the 1st respondent/plaintiff has paid the advance only to the respondents 2 to 4. 4. The suit is barred by limitation. 5. The last payment according to the plaint was on 21.04.2010. 6. The suit ought to have been filed within a period of three years i.e., on or before 21.04.2013 but the suit is filed after a delay of seven years. 7. SARFAESI Appeal No.118 of 2010 was dismissed for default by the DRT, Coimbatore on 02.04.2014 even if the period of limitation is calculated from that date it got over on 02.04.2017. 8. The suit is barred by limitation since the same is not filed within the limitation period as prescribed under Article 58 of the Limitation Act. 9. The suit is barred by SARFAESI Act in terms of Section 34 10. The suit for recovery of money is based on sale agreement dated 04.03.2009 and the suit is of the year 2017 is clearly barred in law. 11. The 1st respondent/plaintiff has already questioned the sale under SARFAESI Act by invoking Section 17 and after failure of the same he is seeking to reagitate the same by way of filing the present suit O.S.No.290 of 2017. 13. Per contra, the learned Senior Counsel appearing for the 1st respondent / plaintiff submitted that by virtue of the sale agreement dated 04.03.2009 a sum of Rs.1,17,00,000/- was paid as an advance and a sum of Rs.35,00,000/- is still lying with the 5th & 6th respondents/State Bank of India. The learned Senior Counsel further drew the attention of this Court to paragraph Nos.26 & 27 of the plaint and the same are extracted as hereunder:- XXVI. Since the legal charge has been created over this suit property, the period for returning of sale consideration amount is 12 years as per article 62 of the Limitation Act, the suit claim is not barred by limitation. XXVII. The defendants are not entitled to forfeit the amount paid by the purchaser as part of sale consideration amount. Since the legal charge has been created over this suit property, the period for returning of sale consideration amount is 12 years as per article 62 of the Limitation Act, the suit claim is not barred by limitation. XXVII. The defendants are not entitled to forfeit the amount paid by the purchaser as part of sale consideration amount. The defendants are also liable to pay interest at the rate of 18% per annum as they are benefited by the amount and the 1st defendant has utilised the amount for his personal as well his family life. Even after repeated demands made by the plaintiff other defendants have not taken any steps to return the amount paid by this plaintiff. The defendants have to pay a sum of Rs.2.52 crores to the 1st respondent/plaintiff. By virtue of the payment of Rs.35,00,000/- the charge is created by the plaintiff. In this context, the learned Senior Counsel relied upon Section 55 (6) (b) of the Transfer of Property Act and the relevant portion is extracted as hereunder:- (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 2[***] 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 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. An omission to make such disclosures as are mentioned in this section, paragraph(1), clause (a) and paragraph (5), clause (a) is fraudulent. 14. The learned Senior Counsel further drew the attention of this Court to Article 62 of the Limitation Act, 1963 according to which the suit is within the period of limitation of three years and not barred by limitation and the relevant portion of the Article 62 is extracted as hereunder:- 62. To enforce payment of money Twelve years. When the money used for secured by a mortgage or otherwise charged upon immovable property. Thus the suit has been laid appropriately and the petition filed by the petitioner to reject the suit has been rightfully dismissed by the lower Court. To enforce payment of money Twelve years. When the money used for secured by a mortgage or otherwise charged upon immovable property. Thus the suit has been laid appropriately and the petition filed by the petitioner to reject the suit has been rightfully dismissed by the lower Court. As per the sale agreement dated 04.03.2009 between the 1st respondent/plaintiff and the respondents 2 & 3, the total sale consideration for the property is a sum of Rs.2,34,00,000/- and the 1st respondent/plaintiff has agreed to purchase and complete the sale on or before 31.07.2009. It is also stated in the agreement that the respondents 2 & 3 have created an equitable mortgage with the State Bank of India, City Oppanakara Street, Coimbatore 641 001 in respect of the property which was more particularly described in the schedule of the agreement and the said mortgage loan requiring discharge shortly. The 1st respondent/plaintiff who is the purchaser according to the sale agreement agreed to pay and discharge on or before 31.08.2009 the entire amount due under the equitable mortgage to the 5th & 6th respondents/State Bank of India, City Branch, Oppanakara Street, Coimbatore 641 001. 15. The learned Senior Counsel further submitted that the property was sold in auction to the revision petitioner/6th defendant for a total sale consideration for a sum of Rs.2.25 crores and the sale certificate was issued on 08.11.2010. He further drew the attention of this Court to the Section 8 (8) of the Security Interest (Enforcement) Rules, 2002 and the same is extracted hereunder:- (8) Sale by any method other than public auction or public tender, shall be on such terms as may be settled between the parties in writing. 16. He further submitted that the charge created by the 1st respondent/plaintiff will have 12 years of limitation as per paragraph Nos.20 & 26 of the plaint, hence the suit is well within the limitation period. A sum of Rs.35,00,000/- which was paid to the Bank as upfront amount for the OTS that was granted to the father of the respondents 2 to 4 by the Bank. A sum of Rs.35,00,000/- which was paid to the Bank as upfront amount for the OTS that was granted to the father of the respondents 2 to 4 by the Bank. The cheque for Rs.35,00,000/- was drawn as under: State Bank of India SAMB Establishment dated 30.03.2009 and in the said cheque it has been specifically mentioned and taken on account by the 5th respondent Bank in the letter dated 19.04.2009 as under:- “Rs.35,00,000/- already deposited appropriated by the Bank on 03.04.2009 as already agreed upon by you. Thus there was a sale agreement between this 1st respondent and the father of the 2nd respondent was well within the knowledge of the Bank as they received the cheque and used it as down payment for the purpose of granting one time settlement to respondents 2 to 4”. 17. The learned Senior Counsel further submitted that respondents 2 to 6 had however after receipt of the above sums colluded with the revision petitioner and sold the suit property to the revision petitioner by way of a private treaty. The said private treaty is under the provisions of the SARFAESI Act before the 2016 amendment which calls for a tripartite agreement between the borrower, bank and the purchaser. Thus there was a sale agreement between this respondent and the borrower was well within the knowledge of the borrowers and the bank who proceeded to fraudulently sell the property to the revision petitioner by ignoring the rights created in favour of this respondent. The sale certificate issued by the Bank also does not disclose the dates or details of the sale. It is further submitted that the instant revision petitioner though having purchased the property by way of a private sale from the borrower and the bank has all along depicted as if the sale is by public auction and has tried to mislead the Court. The 1st respondent/plaintiff on coming to know of the sale had thereafter proceeded to challenge the sale before the Debts Recovery Tribunal (DRT), Coimbatore. The DRT, Coimbatore has dismissed the application of this respondent that the remedy of this 1st respondent/plaintiff lay elsewhere. Thereafter the 1st respondent/plaintiff filed a suit before the District Court, Coimbatore wherein fraud between the revision petitioner herein and other respondents has categorically alleged as the parties have colluded between themselves to deprive the 1st respondent/plaintiff out of his valuable rights. Thereafter the 1st respondent/plaintiff filed a suit before the District Court, Coimbatore wherein fraud between the revision petitioner herein and other respondents has categorically alleged as the parties have colluded between themselves to deprive the 1st respondent/plaintiff out of his valuable rights. The learned Senior Counsel further submitted that as per Section 55 (6) of the Transfer of Property Act, the 1st respondent/plaintiff is entitled to a charge on the property by virtue of amounts advanced to the bank and to the respondents 2 to 4. Section 55 (6) of the Transfer of Property Act reads as under:- The buyer is entitled..... (a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of the property, and to the rents and profits thereof; (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 2[***] 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 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. An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a) and paragraph (5), clause (a) is fraudulent. 18. The learned Senior Counsel further submitted that the 1st respondent/plaintiff is entitled to the amount advanced to the respondents 2 to 6 and in as much as the sale was by way of private treaty which is akin to a private sale on clear tripartite agreement between all the parties, the protection offered to a buyer under a public auction conducted by a bank cannot be imparted to the petitioner and all the respondents along with the petitioner are liable for the suit claim and the charge over the property will subsist. He further submitted that the plaint cannot be rejected as against one defendant and further the contention of the petitioner that the plaint is hit under Section 18 of the SARFAESI act is not true as the suit is laid for recovery of the sums advanced to the respondents herein who colluded with the petitioner and deprived this respondent out of the property and his money. Thus the suit is not laid in challenge to the sale and is only filed to recover the sums paid by the 1st respondent/plaintiff to the respondents 2 to 6. 19. The learned Senior Counsel drew the attention of this Court to Section 8 (8) of Security Interest (Enforcement) Rules, 2002, wherein according to Section 8 it deals with Sale of immovable secured assets and as per clause (8) Sale by any method other than public auction or public tender, shall be on such terms as may be settled between the parties in writing. 20. The learned Senior Counsel further relied upon the judgment of the Hon'ble Supreme Court of India in the case of Bank of Rajasthan Vs VCK Shares and Stock Broking and the relevant paragraph is extracted as hereunder:- 56. In view of the discussion aforesaid, the questions framed above are to be answered as under: (c) Is the jurisdiction of a Civil Court to try a suit filed by a borrower against a Bank or Financial Institution ousted by virtue of the scheme of the RDB Act in relation to the proceedings for recovery of debt by a Bank or Financial Institution? The aforesaid question ought to be answered first and is answered in the negative. (a) Whether an independent suit filed by a borrower against a Bank or Financial Institution, which has applied for recovery of its loan against the plaintiff under the RDB Act, is liable to be transferred and tried along with the application under the RDB Act by the DRT? In the absence of any such power existing in the Civil Court, an independent suit filed by the borrower against the bank or financial institution cannot be transferred to be tried along with application under the RDB Act, as it is a matter of option of the Defendant in the claim under the RDB Act. In the absence of any such power existing in the Civil Court, an independent suit filed by the borrower against the bank or financial institution cannot be transferred to be tried along with application under the RDB Act, as it is a matter of option of the Defendant in the claim under the RDB Act. However, the proceedings under the RDB Act will not be impeded in any manner by filing of a separate suit before the Civil Court. (b) If the answer is in the affirmative, can such transfer be ordered by a Court only with the consent of the plaintiff? Since there is no such power with the civil Court, there is no question of transfer of the suit whether by consent or otherwise. wherein it is clearly held that the suit filed by the borrower against the Bank cannot be held to barred under Section 18 of the SARFAESI Act. Further the 5th & 6th respondents not having filed the petition which is impugned cannot canvass their case before this Court. Thus the plaint cannot be rejected and the lower Court has rightly dismissed the application. 21. In regard to the charge created by the 1st respondent/plaintiff over the subject matter of the property, the learned Senior Counsel has placed reliance on certain judgments of the Hon'ble Supreme Court, the relevant portions of which are usefully extracted below:- 1. Videocon Properties Ltd., Vs Dr.Bhalchandra Laboratories and others [reported in (2004) 3 Supreme Court Cases 711] 13. The buyer's charge engrafted in clause (b) of subsection (6) of Section 55 of the Transfer of Property Act would extend and ensure to the purchase money or earnest money paid before the title passes and property has been delivered by the seller to the purchaser, on the seller's 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 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 the purchaser's 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 simpliciter, as mere security for due performance does not become repayable till the contract or agreement gets terminates 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. 2. Delhi Development Authority Vs Skipper Construction Co.(P) Ltd., and others [reported in (2000) 10 SCC 130 ] 29. These points depend upon the effect of the provisions in sub-section (6) of Section 55 of the Transfer of Property Act. That section starts with the words: “In the absence of a contract to the contrary” and reads thus (insofar as it is material for our purpose): “55. These points depend upon the effect of the provisions in sub-section (6) of Section 55 of the Transfer of Property Act. That section starts with the words: “In the absence of a contract to the contrary” and reads thus (insofar as it is material for our purpose): “55. (6) (b) 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 property pai 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 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.” (emphasis supplied) d. it is plan from the above provision that, in the absence of a contract to the contrary, the buyer will have a charge on the seller's 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. The charge is available against the seller and all persons claiming under him. This charge in favour of the buyer is the converse of the seller's charge under Section 55(4)(b). The buyer's charge under this section is a statutory charge and differs from a contractual charge which a buyer may be entitled to claim under a separate contract. No charge is available unless the agreement is genuine. As pointed out in Mulla's Commentary on Transfer of Property Act, 8th Edn. (p.411), the charge on the property under Section 55(6)(b) is enforceable not only against the seller but against all persons claiming under him. Before the amending Act of 1929, the words “with notice of payment” occurred after the words “all the persons claiming under him”. These words were omitted as they allowed a transferee without notice to escape. After the amendment of 1929, notice to the purchaser has now become irrelevant. 22. Before the amending Act of 1929, the words “with notice of payment” occurred after the words “all the persons claiming under him”. These words were omitted as they allowed a transferee without notice to escape. After the amendment of 1929, notice to the purchaser has now become irrelevant. 22. The learned Senior Counsel drew the attention of this Court to the letter dated 19.04.2009 written by the 5th & 6th respondents/State Bank of India addressed to the father of the 2nd respondent namely E.Purushothaman in which it is clearly mentioned that a sum of Rs.35 lakhs already deposited appropriated by the Bank on 03.04.2009 as already agreed upon by you. The learned Senior Counsel further drew the attention of this Court to the order passed by DRT, Coimbatore in S.A.No.118 of 2010 in which it was observed that “the remedy of the applicant is elsewhere, if it is so advised. In the result, in view of observations made supra, this Tribunal is of the view that the applicant has failed to establish sufficient cause to entertain the application. Hence, this application deserves no consideration and accordingly it is dismissed”. 23. The learned Senior Counsel further submitted that in the plaint it is clearly stated about the fraud and collusion between the vendor and the Bank whereas the sale agreement was executed by the father and son P.Ethirajulu, who is the son of late E.Purushothaman, the vendor of the property. He once again reiterated that as per Article 62 the period of limitation Act, the period from the date dues and the plaint cannot be rejected in part and it is settled position of law. He also relied upon Section 56 (6) of Transfer of Property Act, the sale of property was not by auction and it is by private treaty. He further submitted that 2nd & 4th respondents are not contesting party in the present civil revision petition. He further relied upon Rule 8 (8) of Security Interest (Enforcement) Rules, 2002 which is preamended SARFAESI Act that is prior to 2016 amendment. 24. Hence the contentions of the learned Senior Counsel appearing for the 1st respondent/plaintiff are as follows:- 1. There is a valid sale agreement between the 1st respondent/plaintiff and the respondents 2 to 4 by which the 1st respondent/plaintiff has also paid a sum of Rs.1,17,00,000/- as an advance amount. 24. Hence the contentions of the learned Senior Counsel appearing for the 1st respondent/plaintiff are as follows:- 1. There is a valid sale agreement between the 1st respondent/plaintiff and the respondents 2 to 4 by which the 1st respondent/plaintiff has also paid a sum of Rs.1,17,00,000/- as an advance amount. Hence he is entitled to recover the sale from the defendants. 2. By virtue of payment of Rs.35,00,000/- to the 5th & 6th respondents Bank there is a charge created over the property by the plaintiff. 3. Under Article 26 of the Limitation Act, 1963 the suit is within the period of Limitation hence the same is maintainable. 4. The suit is filed after the SA.No.118 of 2010 filed by the 1st respondent/plaintiff was dismissed by the DRT, Coimbatore in which it is observed that the remedy of the applicant lies elsewhere and after that only the suit O.S.No.290 of 2017 was filed in the year 2017 before the IVth Additional District Judge, Coimbatore. 5. The charge created by the 1st respondent/plaintiff by virtue of payment of Rs.35,00,000/- towards the Bank was also acknowledged by the Bank. The charge created will have 12 years of limitation from the year 2009 and limitation period will be over only on 2021 but whereas the suit has been filed in the year 2017 itself. 6. As per Section 55(6) of the Transfer of Property Act, the 1st respondent/plaintiff is entitled to a charge on the property by virtue of amount advanced to the Bank and to the respondents 2 to 4. 7. As per the article 62 of the Limitation Act, 1963 the period of 12 years has to be calculated from the year 2009 and the same will be over by 2021 and the suit is filed in the year 2017 is within the period of 12 years. 8. Since the suit has been laid appropriately the petition filed by the petitioner to reject their plaint under Order 7 Rule 11 r/w Section 151 of CPC has been rightly rejected by the trial Court. 9. The property was sold by way of private treaty 10. The charge is created over the property. 25. In view of the advance amount paid by the 1st respondent/plaintiff to the respondents 2 to 4 and the payment of Rs.35,00,00,000/- to the State Bank of India on 03.04.2009. 9. The property was sold by way of private treaty 10. The charge is created over the property. 25. In view of the advance amount paid by the 1st respondent/plaintiff to the respondents 2 to 4 and the payment of Rs.35,00,00,000/- to the State Bank of India on 03.04.2009. The charge is created over the property by the 1st respondent/plaintiff as per the judgments of the Hon'ble Supreme Court of India which has been relied upon by the learned Senior Counsel for the 1st respondent/plaintiff. 26. The learned counsel appearing for the 5th & 6th respondents/State Bank of India submitted that the suit is not maintainable against the Bank. The plaint prayer also includes against the Bank i.e., against all the defendants and the suit is not maintainable against the Bank. He further submitted that the suit property has already conveyed and the subsisting charge limitation is only for three years. 27. He further submitted that there is no brevity of contract between the 1st respondent/plaintiff and 5th & 6th respondents/State Bank of India. As per the agreement dated 04.03.2009, it is clearly stated that the seller who are the respondents 2 to 4 have created equitable mortgage with the 5th & 6th respondents/State Bank of India which clearly shows that the 5th & 6th respondents Bank has the 1st charge in regard to the schedule property. Even as per the clause (2) of the sale agreement dated 04.03.2009 the purchaser has agreed to pay a discharge on or before 31.08.2009 the entire amount due under the equitable mortgage to the 5th & 6th respondents/State Bank of India, City Oppanakara Street, Coimbatore in respect of the schedule property. 28. The learned counsel further submitted that a sum of Rs.35,00,000/- was paid by the 1st respondent/plaintiff by cheque dated 30.03.2009 drawn on ICICI Bank directly to the Bank. The learned counsel drew the attention of this Court to the compromise settlement dated 04.04.2009 in which it is stated by E.Purushothaman that he has availed loan from State Bank of India, Stressed Assets Management Branch, Chennai and the outstanding in the account is Rs.1,47,57,160/- and he has paid a sum of Rs.35,00,000/- as upfront for the compromise settlement of the dues and he will pay the remaining sum of Rs.1,12,57,160/- within one month and request may be accepted by the Bank. Then a reply letter dated 19.04.2009 sent by the 5th respondent to E.Purushothaman in which it is mentioned that a sum of Rs.35,00,000/- already deposited appropriated by the Bank on 03.04.2009 as already agreed upon by you. 29. The learned counsel drew the attention of this Court to the letter dated 04.12.2010 written by the Bank to S.A.Kumar in regard to sale of Ethirajulu Janakiammal Kalyana Mandapam, Coimbatore and the relevant portion is extracted hereunder:- The aforesaid Kalyana Mandapam property has already been sold by the Bank under the provisions of the SARFAESI Act towards the recovery of the dues of the Bank. Therefore your request for sale of the aforesaid property at Vysial Street, Coimbatore cannot be accepted by the Bank. Hence the limitation period started from 04.12.2010 and the same was over by 04.12.2013 whereas the suit has been filed in the year 2017. Hence the same is barred by limitation Act, 1963. The plaintiff approached the DRT in the year 2010 and the same was dismissed for default and even if the limitation period has calculated from the year 2010 the same got over in the year 2013. Hence the suit is barred by limitation”. 30. The learned counsel relied upon the judgment of the Hon'ble Supreme Court in Civil Appeal No.9519 of 2019 dated 09.07.2020 in the case of Dahiben Vs Arvindbhai Kalyanji Bhanusali (D) and others and the relevant portion is extracted as hereunder:- 12.8 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit and does not disclose a right to sue, the Court would be justified in exercising the power under Order VII Rule 11 Code of Civil Procedure. 12.9 The power Under Order VII Rule 11 Code of Civil Procedure may be exercised by the Court at any stage of the suit, either before registering the plaint or after issuing summons to the defendant or before conclusion of the trial as held by this Court in the judgment of Saleem Bhai Vs State of Maharashtra MANU/SC/1185/2002: (2003) 1 SCC 557 . The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra) 12.10 The provision of Order VII Rule 11 is mandatory in nature. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra) 12.10 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in Clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action or that the suit is barred by any law, the Court has no option but to reject the plaint. 13. “Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of materials facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit. In Swamy Atmanand Vs Sri Ramakrishna Tapovanam MANU/SC/0287/2005: (2005) 10 SCC 51 this Court held: 24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the Court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the Defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is found. In T. Arivandandam Vs T.V.Satyapal and another MANU/SC/0034/1977 : (1977) 4 SCC 467 this Court held that while considering an application under Order VII Rule 11 Code of Civil Procedure what is required to be decided is whether the plaint discloses a real cause of action or something purely illusory in the following words: 5.... The learned Munsif must remember that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, Code of Civil Procedure taking care to see that the ground mentioned therein is fulfilled. The learned Munsif must remember that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, Code of Civil Procedure taking care to see that the ground mentioned therein is fulfilled. And if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing...... 14. The Limitation Act, 1963 prescribes a time-limit for the situation of all suits, appeals, and applications. Section 2(j) defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article. Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought or cancellation of an instrument or rescission of a contract which reads as under:- Description of suit Period of limitation Time from which period begins to run 58. To obtain any other declaration Three years When the right to sue first accrues. 59. To cancel or set aside an instrument or decree or for the rescission of a contract. Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. 31. The learned counsel drew the attention of this Court to letter dated 16.08.2010 written by Smt.Sakunthala w/o.Late E.Purushothaman, the mortgagor for the loans which was sanctioned to him and that E.Purushothaman expired on 12.06.2010. Therefore, Smt.Sakunthala W/o.Late. E.Purushothaman (Late) and (ii) Shri.P.Ethiraj S/o.Late. Purushothaman iii) Smt.Ganga D/o.Late. E.Purushothaman are the only legal heirs of deceased Shri.E.Purushothaman. 31. The learned counsel drew the attention of this Court to letter dated 16.08.2010 written by Smt.Sakunthala w/o.Late E.Purushothaman, the mortgagor for the loans which was sanctioned to him and that E.Purushothaman expired on 12.06.2010. Therefore, Smt.Sakunthala W/o.Late. E.Purushothaman (Late) and (ii) Shri.P.Ethiraj S/o.Late. Purushothaman iii) Smt.Ganga D/o.Late. E.Purushothaman are the only legal heirs of deceased Shri.E.Purushothaman. The learned counsel further drew the attention of this Court to letter dated 06.11.2010 written by State Bank of India to the revision petitioner/6th defendant wherein it has been stated that “M.S.Dhandapani, Authorised Officer & Assistant General Manager, State Bank of India, Stressed Assets Management Branch, Chennai hereby hand over the possession of the above building situated at 77, Vysial Street, Coimbatore 641 001 as the sale consideration of Rs.2.52 crores has already been received by the Bank from M/s.Pothys. Hence even if the limitation is counted from this date it gets over on 19.11.2013 and the suit filed in the year 2017 is barred by limitation. He further submitted that as per Section 100 of the Transfer of Property Act, the bank has the mortgage right in a better footing and the relevant portion is extracted hereunder:- Where immovable property of one person is by an act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions herein before contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.” 32. Hence the contentions of the learned counsel appearing for the 5th & 6th respondents/State Bank of India are as follows:- 1. The suit is not maintainable against the Bank 2. Hence the contentions of the learned counsel appearing for the 5th & 6th respondents/State Bank of India are as follows:- 1. The suit is not maintainable against the Bank 2. As per Section 34 of the SARFAESI Act, 2002 the sale of the subject property is under SARFAESI Act hence in terms of 34 of the SARFAESI Act the suit is barred in law and the same is not maintainable in law. 3. The Bank was not informed that a sum of Rs.35,00,000/- which was paid to the Bank by the 1st respondent/plaintiff on 03.04.2009 is the money for the purchase of the property. 4. The subject matter of the property was already mortgaged with the 5th & 6th respondents/State Bank of India and the Doctrine of Caveator will come into play. 5. No demand was made to the Bank and the first respondent/plaintiff directly filed the suit. 6. The suit has to be filed for specific performance as per the Hon'ble Supreme Court Judgment dated 18.04.2023 7. DRT only will have jurisdiction 33. Heard both sides and perused the materials available on record. 34. The suit O.S.No.290 of 2017 is filed for the following relief:- a) by directing the defendants to pay a sum of Rs.2,81,60,050/- with subsequent interest on Rs.1,17,00,000/- from the date of plaint, till date of payment. c) declaring that the legal charge created over this scheduled property is subsisting as on date for the amount paid by the plaintiff. The 1st respondent/plaintiff has entered into a sale agreement dated 04.03.2009 with the respondents 2 to 4. At the time of sale agreement itself the property was mortgaged with the 5th & 6th respondents/State Bank of India by the respondents 2 to 4. As per the sale agreement, the 1st respondent/plaintiff has agreed to purchase the property on or before 31.07.2009 free from all encumbrances for a sum of Rs.2,34,00,000/-. Since the property was already mortgaged by the father of the 2nd respondent with the 5th & 6th respondents/State Bank of India for the loan already availed by them. Compromise settlement dated 04.04.2009 where in it was agreed by E.Purushothaman Vendor in the sale agreement dated 04.03.2009 that he will remit the entire outstanding sum of Rs.1,47,00,000/- which is due to the 5th & 6th respondents Bank within one month or by sale of property mortgaged to the Bank. Compromise settlement dated 04.04.2009 where in it was agreed by E.Purushothaman Vendor in the sale agreement dated 04.03.2009 that he will remit the entire outstanding sum of Rs.1,47,00,000/- which is due to the 5th & 6th respondents Bank within one month or by sale of property mortgaged to the Bank. In the outstanding amount of Rs.1,47,00,000/- a sum of Rs.35,00,000/- was already paid by the 1st respondent/plaintiff by cheque dated 30.03.2009 which was appropriated by the Bank on 03.04.2009 and the remaining amount for a sum of Rs.1,27,57,160/- has to be paid within one month. The borrower namely E.Purushothaman died on 12.06.2010 and the legal heirs are Smt.Sakunthala W/o.Late. E.Purushothaman (Late) and (ii) Shri.P.Ethiraj S/o.Late. Purushothaman iii) Smt.Ganga D/o.Late. E.Purushothama. Shri.P.Ethiraju is also one of the party to the sale agreement dated 04.03.2009 entered between the 1st respondent/plaintiff. The borrower namely E.Purushothaman failed to repay the amount borrowed from the 5th & 6th respondents/State Bank of India and the property was sold by the Bank by way of a private treaty to the revision petitioner/6th defendant M/s.Pothys and the sale certificate dated 08.11.2010 was also executed by the 6th respondent registered as Doc.No.1510/15 on the file of SRO, Coimbatore dated 13.11.2009. A sum of Rs.1,17,00,000/- paid as an advance amount by the 1st respondent/plaintiff as per sale agreement dated 04.03.2009 and a sum of Rs.35,00,000/- which was paid to the Bank on behalf of the 1st respondent/plaintiff by way of cheque dated 30.03.2009 drawn on ICICI Bank paid on behalf of the 1st respondent/plaintiff has to be recovered by the 1st respondent/plaintiff. More over by virtue of the amount paid the 1st respondent/plaintiff has created a charge over the subject matter of the property. 35. As per Article 62 of the Limitation Act, 1993 the period of limitation is 12 years even if the date is taken from the date of payment of a sum of Rs.35,00,000/- i.e., on 30.03.2009 to the State Bank of India and the Limitation will be over in the year 2021, whereas the suit has been filed in the year 2017 vide O.S.No.290 of 2017 which is within the period of limitation as prescribed in the Limitation Act, 1963. It is pertinent to note that as per Section 55 (6) of the Transfer of Property Act, the 1st respondent/plaintiff is entitled to the charge on the property by the virtue of the amount advanced to the Bank and to the respondents 2 to 4. At this juncture, it is relevant to extract Section 55 (6) of the Transfer of Property Act and the same is extracted as hereunder:- The buyer is entitled..... (a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of the property, and to the rents and profits thereof; (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 2[***] 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 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. An omission to make such disclosures as are mentioned in this section, paragraph(1), clause (a) and paragraph (5), clause (a) is fraudulent. 6. The period of limitation for such suit is 12 years as seen from the clear language of the Limitation act. The relevant portion of the limitation act is produced hereunder: 62. To enforce payment of money Twelve years. When the money used for secured by a mortgage or otherwise charged upon immovable property. Thus the suit has been laid appropriately and the petition filed by the petitioner to reject the suit has been rightfully dismissed by the lower Court. 36. It is also clear and evident that the DRT, Coimbatore in the order passed in S.A.No.118 of 2010 dated 22.12.2017, wherein it is stated that the respondents remedy is elsewhere. Hence, this suit filed by the 1st respondent/plaintiff is maintainable and the said suit is not to challenge the same and it is only to recover the sums paid by the 1st respondent/plaintiff to the respondents 2 to 4. 37. Hence, this suit filed by the 1st respondent/plaintiff is maintainable and the said suit is not to challenge the same and it is only to recover the sums paid by the 1st respondent/plaintiff to the respondents 2 to 4. 37. In view of the above factual matrix of the case, discussions and the ratio laid down by the Hon'ble Supreme Court of India, this Court is of the considered view that the fair and decreetal order passed by the IV Additional District Sessions Judge, Coimbatore dated 07.11.2019 in I.A.No.505 of 2018 in O.S.No.290 of 2017 does not warrant interference by this Court and the same is hereby confirmed. 38. In the result, the civil revision petition stands dismissed. No costs. Consequently connected miscellaneous petition is also closed.