The Plaintiffs have made out a case of alleged nonpayment
of a part of the sale consideration in the Plaint,
and prayed for the relief of cancellation of the Sale Deed on
this ground.
Section 54 of the Transfer of Property Act, 1882
provides as under :
“54. ‘Sale’ defined.—‘Sale’ is a transfer of ownership in
exchange for a price paid or promised or part-paid and part promised.”
The definition of “sale” indicates that there must
be a transfer of ownership from one person to another i.e.
transfer of all rights and interest in the property, which
was possessed by the transferor to the transferee. The
transferor cannot retain any part of the interest or right in
the property, or else it would not be a sale. The definition
further indicates that the transfer of ownership has to be
made for a “price paid or promised or part paid and part
promised”. Price thus constitutes an essential ingredient
of the transaction of sale.
In Vidyadhar v. Manikrao & Anr. (1999) 3 SCC 573. this
Court held that the words “price paid or promised or part paid and part promised” indicates that actual payment of the whole
of the price at the time of the execution of the Sale Deed is
not a sine qua non for completion of the sale. Even if the
whole of the price is not paid, but the document is
executed, and thereafter registered, the sale would be
complete, and the title would pass on to the transferee
under the transaction. The non-payment of a part of the
sale price would not affect the validity of the sale. Once the
title in the property has already passed, even if the balance
sale consideration is not paid, the sale could not be
invalidated on this ground. In order to constitute a “sale”,
the parties must intend to transfer the ownership of the
property, on the agreement to pay the price either in
praesenti, or in future. The intention is to be gathered from
the recitals of the sale deed, the conduct of the parties, and
the evidence on record.
In view of the law laid down by this Court, even if
the averments of the Plaintiffs are taken to be true, that
the entire sale consideration had not in fact been paid, it
could not be a ground for cancellation of the Sale Deed.
The Plaintiffs may have other remedies in law for recovery
of the balance consideration, but could not be granted the
relief of cancellation of the registered Sale Deed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9519 OF 2019
DAHIBEN Vs ARVINDBHAI KALYANJI BHANUSALI
(GAJRA)(D) THR LRS & ORS.
INDU MALHOTRA, J.
Dated: July 09, 2020.
1. The present Civil Appeal has been filed to challenge the
impugned Judgment and Order dated 19.10.2016 passed by a
Division Bench of the Gujarat High Court, which affirmed the
Order of the Trial Court, allowing the application filed by
Defendant Nos. 2 and 3/Respondent Nos. 2 and 3 herein under
Order VII Rule 11(d), CPC holding that the suit filed by the
Appellant and Respondent Nos. 9 to 13 herein (hereinafter referred
to as the “Plaintiffs”) was barred by limitation.
2. The subject-matter of the present proceedings pertains to a
plot of agricultural land of old tenure, admeasuring approximately
8701 sq. mtrs. in Revenue Survey No. 610, Block No.573 situated
in village Mota Varachha, Sub-District Surat (hereinafter referred
to as the “suit property”) which was in the ownership of the
Plaintiffs.
3. The land was under restrictive tenure as per Section 73AA of
the Land Revenue Code. The Plaintiffs filed an application dated
13.05.2008 before the Collector, Surat to obtain permission for
selling the suit property to Respondent No.1/Defendant No.1,
which was non-irrigated, and stated that they had no objection to
the sale of the suit property.
4. The Collector vide Order dated 19.06.2009, after carrying out
verification of the title of the Plaintiffs, permitted sale of the suit
property, and fixed the sale price of the suit property as per the
jantri issued by the State Government @ Rs. 2000/- per sq. mtr.,
which would work out to Rs. 1,74,02,000/-. The Collector granted
permission for the sale subject to the terms and conditions
contained in Section 73AA of the Land Revenue Code. It was
stipulated that the purchaser shall make the payment by cheque,
and reference of the payment shall be made in the Sale Deed.
5. After obtaining permission from the Collector, the Plaintiffs
sold the suit property to Respondent No.1 herein vide registered
Sale Deed dated 02.07.2009.
Respondent No. 1 - purchaser issued 36 cheques for
Rs.1,74,02,000 towards payment of the sale consideration in
favour of the Plaintiffs, the details of which were set out in the
registered Sale Deed dated 02.07.2009.
6. The Respondent No. 1 subsequently sold the suit property to
Respondent Nos. 2 and 3 herein vide registered Sale Deed dated
01.04.2013, for a sale consideration of Rs. 2,01,00,000/-.
7. On 15.12.2014, the Plaintiffs filed Special Civil Suit No.
718/2014 before the Principal Civil Judge, Surat against the
original purchaser i.e. Respondent No. 1, and also impleaded the
subsequent purchasers i.e. Respondent Nos. 2 and 3 as
defendants. It was inter alia prayed that the Sale Deed dated
02.07.2009 be cancelled and declared as being illegal, void,
ineffective and not binding on them, on the ground that the sale
consideration fixed by the Collector, had not been paid in entirety
by Respondent No. 1.
The Plaintiffs contended that they were totally illiterate, and
were not able to read and write, and were only able to put their
thumb impression on the Sale Deed dated 02.07.2009. The Sale
Deed was obtained without payment of full consideration. The
Respondent No.1 had paid only Rs. 40,000 through 6 cheques, and
remaining 30 cheques for Rs.1,73,62,000 were “bogus” cheques.
The Plaintiffs prayed for cancellation of the Sale Deed dated
02.07.2009, and also prayed that the subsequent Sale Deed dated
01.04.2013 be declared as illegal, void and ineffective; and, the
physical possession of the suit property be restored to the
Plaintiffs.
8. Respondent Nos. 2 and 3 filed an Application for Rejection of
the Plaint under Order VII Rule 11 (a) and (d) of the CPC,
contending that the suit filed by the Plaintiffs was barred by
limitation, and that no cause of action had been disclosed in the
plaint.
It was inter alia submitted that the Plaintiffs had admitted the
execution of the Sale Deed dated 02.07.2009 in favour of
Respondent No.1 before the Sub-Registrar, Surat. The only dispute
now sought to be raised was that they had not received a part of
the sale consideration. This plea was denied as being incorrect.
It was further submitted that if the Sale Deed dated
02.07.2009 was being challenged, then the suit ought to have been
filed within three years i.e. on or before 02.07.2012.
It was further submitted that pursuant to the execution of the
registered Sale Deed dated 02.07.2009, the Plaintiffs had
participated in the proceedings before the Revenue Officer for
transfer of the suit property in the revenue records in favour of
Respondent No.1. On that basis, the suit property had been
transferred to Respondent No.1 vide Hakk Patrak Entry No. 6517
dated 24.07.2009. Before certifying the said entry, notice under
Section 135D of the Land Revenue Code had been duly served on
the Plaintiffs, and ever since, Respondent No. 1 had been paying
the land revenue on the suit property, and taking the produce
therefrom.
Respondent Nos. 2 and 3 further submitted that they had
purchased the suit property from Respondent No.1 after verifying
the title, and inspecting the revenue records. The Respondent No.1
had sold the suit property vide a registered Sale Deed dated
01.04.2013, on payment of valuable consideration of Rs.
2,01,00,000/-. Pursuant thereto, the suit property was
transferred in the name of Respondent Nos. 2 and 3 in the revenue
records.
It was further submitted that the Plaintiffs, with a view to
mislead the Court, had deliberately filed copies of the 7/12
extracts dated 20.07.2009, which was prior to the mutation being
effected in the name of Respondent No.1. It was submitted that
the suit was devoid of any merit, and clearly time-barred, and
liable to be rejected.
9. The Trial Court carried out a detailed analysis of the
averments in the plaint alongwith the documents filed with the
plaint, including the registered Sale Deed dated 02.07.2009,
executed by the Plaintiffs. The undisputed facts which emerged
from the averments in the plaint was that the suit property was of
restrictive tenure under Section 73AA of the Land Revenue Code.
Since the Plaintiffs were in dire need of money, and wanted to sell
the suit property to Respondent No. 1, they had filed an application
before the Collector, Surat on 13.05.2008 to obtain permission for
sale of the suit property. The Collector vide Order dated
19.06.2009 granted permission to the Plaintiffs and fixed the sale
price at Rs. 1,74,02,000/- which was to be paid through cheques.
It was contended in the plaint that the Respondent No. 1 had in
fact paid only Rs. 40,000/-, and false cheques of Rs. 1,73,62,000/-
were issued, which remained unpaid.
On a perusal of the registered Sale Deed dated 02.07.2009,
[marked as Exhibit 3/9] it was noted that the Plaintiffs had in fact
accepted and acknowledged the payment of the full sale
consideration from Respondent No.1, through cheques which were
issued prior to the execution of the Sale Deed, during the period
07.07.2008 to 02.07.2009.
As per the Plaintiffs, the Sale Deed was executed on
02.07.2009 in favour of Respondent No.1, which was registered
before the Office of the Sub-Registrar, for which the Plaintiffs
would have remained personally present. The transaction having
been executed through a registered document, was in the public
domain, and in the knowledge of the Plaintiffs right from the
beginning.
The Trial Court noted that there was no averment in the plaint
that the cheques had not been received by them. Once the cheques
were received by them, in the normal course, they would have
presented the cheques for encashment within 6 months. The
Court held that had the Plaintiffs not been able to encash 30
cheques, a complaint ought to have been filed, or proceedings
initiated for recovery of the unpaid sale consideration. There was
however, nothing on record to show that the Plaintiffs had made
any complaint in this regard for a period of over 5 years.
The Plaintiffs also failed to produce the returned cheques, their
passbooks, bank statements, or any other document to support
their averments in the plaint.
A notice for transfer of the suit property in the revenue records
under Section 135D was served on the Plaintiffs, to which no
objection was raised. The name of Respondent No. 1 was entered
into the revenue records, which was certified by the Revenue
Officer.
The Trial Court held that the period of limitation for filing the
suit was 3 years from the date of execution of the Sale Deed dated
02.07.2009. The suit was filed on 15.12.2014. The cause of action
as per the averments in the plaint had arisen when the Defendant
No.1/Respondent No.1 had issued ‘false’ or ‘bogus’ cheques to the
Plaintiffs in 2009. The suit for cancellation of the Sale Deed dated
02.07.2009 could have been filed by 2012, as per Articles 58 and
59 of the Limitation Act, 1963. The suit was however filed on
15.12.2014, which was barred by limitation.
The suit property was subsequently sold by Respondent No.1
to Respondent Nos. 2 and 3 by a registered Sale Deed dated
01.04.2013. Before purchasing the suit property, the Respondent
Nos. 2 and 3 had issued a public notice on 14.08.2012. The
Plaintiffs did not raise any objection to the same.
The Trial Court, on the basis of the settled position in law, held
that the suit of the Plaintiffs was barred by limitation, and allowed
the application under Order VII Rule 11(d) CPC.
10. Aggrieved by the Judgment dated 12.08.2016 passed by the
Sr. Civil Judge, Surat, the Plaintiffs filed First Appeal
No.2324/2016 before the High Court of Gujarat at Ahmedabad.
The Division Bench of the High Court took note of the fact that
the Plaintiffs did not deny having executed the registered Sale Deed
dated 02.07.2009 in favour of Respondent No.1. In the said Sale
Deed, it was specifically admitted and acknowledged by the
Plaintiffs that they had received the full sale consideration. The
Sale Deed contained the complete particulars with respect to the
payment of sale consideration by Respondent No. 1 through 36
cheques, the particulars of which were recorded therein. Since the
execution of the Sale Deed was not disputed, and the conveyance
was duly registered in the presence of the Plaintiffs before the Sub-
Registrar, the Sale Deed could not be declared to be void, illegal,
or ineffective.
The suit property was subsequently sold by Respondent No. 1
in favour of Respondent Nos. 2 and 3 vide registered Sale Deed
dated 01.04.2013 for a sale consideration of Rs. 2,01,00,000/-.
Respondent Nos. 2 and 3 were bona fide purchasers for valuable
consideration.
The present suit for cancellation of the Sale Deed was filed by
the Plaintiffs after a period of over 5 years after the execution of
the Sale Deed dated 02.07.2009, and 1 year after the execution of
the Sale Deed dated 01.04.2013 by Respondent No.1. It was noted
that prior to the institution of the suit on 15.12.2014, at no point
of time did the Plaintiffs raise any grievance whatsoever, of not
having received the full sale consideration mentioned in the Sale
Deed dated 02.07.2009. It was for the first time that such an
allegation was made after over 5 years from the date of execution
of the Sale Deed dated 02.07.2009.
Since the suit in respect of the Sale Deed dated 02.07.2009
was held to be barred by law of limitation, the High Court was of
the view that the suit could not be permitted to be continued even
with respect to the subsequent Sale Deed dated 01.04.2013. The
Plaintiffs had not raised any allegation against Respondent Nos. 2
and 3, and there was no privity of contract between the Plaintiffs
and Respondent Nos. 2 and 3.
The High Court rightly affirmed the findings of the Trial Court,
and held that the suit was barred by limitation, since it was filed
beyond the period of limitation of three years.
11. Aggrieved by the impugned Judgment and Order dated
12.08.2016 passed by the High Court, the original Plaintiff No.1
has filed the present Civil Appeal.
12. We have heard the learned Counsel for the parties, perused
the plaint and documents filed therewith, as also the written
submissions filed on behalf of the parties.
12.1 We will first briefly touch upon the law applicable for
deciding an application under Order VII Rule 11 CPC,
which reads as under:
“11. Rejection of plaint.– The plaint shall be rejected in
the following cases:–
(a) where it does not disclose a cause of action;
(b) where the relief claimed in undervalued, and the
plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails to
do so;
(c) where the relief claimed is properly valued but the
plaint is written upon paper insufficiently stamped, and
the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the
Court, fails to do so;
(d) where the suit appears from the statement in
the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions
of rule 9
Provided that the time fixed by the Court for the
correction of the valuation or supplying of the requisite
stamp-paper shall not be extended unless the Court, for
reasons to be recorded, is satisfied that the plaintiff was
prevent by any cause of exceptional nature for correction
the valuation or supplying the requisite stamp-paper, as
the case may be, within the time fixed by the Court and
that refusal to extend such time would cause grave
injustice to the plaintiff.”
(emphasis supplied)
The remedy under Order VII Rule 11 is an
independent and special remedy, wherein the Court is
empowered to summarily dismiss a suit at the threshold,
without proceeding to record evidence, and conducting a
trial, on the basis of the evidence adduced, if it is satisfied
that the action should be terminated on any of the grounds
contained in this provision.
The underlying object of Order VII Rule 11 (a) is
that if in a suit, no cause of action is disclosed, or the suit
is barred by limitation under Rule 11 (d), the Court would
not permit the plaintiff to unnecessarily protract the
proceedings in the suit. In such a case, it would be
necessary to put an end to the sham litigation, so that
further judicial time is not wasted.
In Azhar Hussain v. Rajiv Gandhi1 this Court held
that the whole purpose of conferment of powers under this
provision is to ensure that a litigation which is
meaningless, and bound to prove abortive, should not be
1 1986 Supp. SCC 315
Followed in Maharaj Shri Manvendrasinhji Jadeja v. Rajmata Vijaykunverba w/o Late
Maharaja Mahedrasinhji, (1998) 2 GLH 823
permitted to waste judicial time of the court, in the
following words :
“12. …The whole purpose of conferment of such power is to
ensure that a litigation which is meaningless, and bound to
prove abortive should not be permitted to occupy the time of
the Court, and exercise the mind of the respondent. The
sword of Damocles need not be kept hanging over his head
unnecessarily without point or purpose. Even if an ordinary
civil litigation, the Court readily exercises the power to reject
a plaint, if it does not disclose any cause of action.”
12.2 The power conferred on the court to terminate a civil
action is, however, a drastic one, and the conditions
enumerated in Order VII Rule 11 are required to be strictly
adhered to.
12.3 Under Order VII Rule 11, a duty is cast on the Court to
determine whether the plaint discloses a cause of action
by scrutinizing the averments in the plaint2, read in
conjunction with the documents relied upon, or whether
the suit is barred by any law.
12.4 Order VII Rule 14(1) provides for production of
documents, on which the plaintiff places reliance in his
suit, which reads as under :
“Order 7 Rule 14: Production of document on which
plaintiff sues or relies.–
(1)Where a plaintiff sues upon a document or relies upon
document in his possession or power in support of his claim,
he shall enter such documents in a list, and shall produce it
in Court when the plaint is presented by him and shall, at
2 Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I & Anr., (2004) 9 SCC 512.
the same time deliver the document and a copy thereof, to
be filed with the plaint.
(2)Where any such document is not in the possession or
power of the plaintiff, he shall, wherever possible, state in
whose possession or power it is.
(3)A document which ought to be produced in Court by the
plaintiff when the plaint is presented, or to be entered in the
list to be added or annexed to the plaint but is not produced
or entered accordingly, shall not, without the leave of the
Court, be received in evidence on his behalf at the hearing
of the suit.
(4)Nothing in this rule shall apply to document produced for
the cross examination of the plaintiff's witnesses, or,
handed over to a witness merely to refresh his memory.”
(emphasis supplied)
Having regard to Order VII Rule 14 CPC, the documents
filed alongwith the plaint, are required to be taken into
consideration for deciding the application under Order VII
Rule 11 (a). When a document referred to in the plaint,
forms the basis of the plaint, it should be treated as a part
of the plaint.
12.5 In exercise of power under this provision, the Court
would determine if the assertions made in the plaint are
contrary to statutory law, or judicial dicta, for deciding
whether a case for rejecting the plaint at the threshold is
made out.
12.6 At this stage, the pleas taken by the defendant in the
written statement and application for rejection of the plaint
on the merits, would be irrelevant, and cannot be adverted
to, or taken into consideration.3
12.7 The test for exercising the power under Order VII Rule
11 is that if the averments made in the plaint are taken in
entirety, in conjunction with the documents relied upon,
would the same result in a decree being passed. This test
was laid down in Liverpool & London S.P. & I Assn. Ltd. v.
M.V.Sea Success I & Anr.,4 which reads as :
“139. Whether a plaint discloses a cause of action or not is
essentially a question of fact. But whether it does or does
not must be found out from reading the plaint itself. For the
said purpose, the averments made in the plaint in their
entirety must be held to be correct. The test is as to whether
if the averments made in the plaint are taken to be correct
in their entirety, a decree would be passed.”
In Hardesh Ores (P.) Ltd. v. Hede & Co.5 the Court
further held that it is not permissible to cull out a sentence
or a passage, and to read it in isolation. It is the
substance, and not merely the form, which has to be
looked into. The plaint has to be construed as it stands,
without addition or subtraction of words. If the allegations
in the plaint prima facie show a cause of action, the court
3 Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 3 SCC 137
4 (2004) 9 SCC 512.
5 (2007) 5 SCC 614.
cannot embark upon an enquiry whether the allegations
are true in fact.6
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 CPC.
12.9 The power under Order VII Rule 11 CPC 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 v. State of
Maharashtra.7 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.
6 D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v.
Dukh Haran Nath Singh, AIR 1962 SC 941.
7 (2003) 1 SCC 557.
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 material facts,
which are necessary for the plaintiff to prove in order to entitle him
to the reliefs claimed in the suit.
In Swamy Atmanand v. Sri Ramakrishna Tapovanam8 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 founded”
(emphasis supplied)
In T. Arivandandam v. T.V. Satyapal & Anr.9 this Court held
that while considering an application under Order VII Rule 11 CPC
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 Munsiff 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 O. VII, R. 11, C.P.C. taking care to see that the ground
mentioned therein is fulfilled. And, if clever drafting has
8 (2005) 10 SCC 51.
9 (1977) 4 SCC 467.
created the illusion of a cause of action, nip it in the bud at
the first hearing …”
(emphasis supplied)
Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate
Tribunal,10 this Court held that law cannot permit clever drafting
which creates illusions of a cause of action. What is required is
that a clear right must be made out in the plaint.
If, however, by clever drafting of the plaint, it has created the
illusion of a cause of action, this Court in Madanuri Sri
Ramachandra Murthy v. Syed Jalal11 held that it should be nipped
in the bud, so that bogus litigation will end at the earliest stage.
The Court must be vigilant against any camouflage or
suppression, and determine whether the litigation is utterly
vexatious, and an abuse of the process of the court.
14. The Limitation Act, 1963 prescribes a time-limit for the
institution 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
10 (1998) 2 SCC 170.
11 (2017) 13 SCC 174.
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.
The period of limitation prescribed under Articles 58 and 59
of the 1963 Act is three years, which commences from the date
when the right to sue first accrues.
In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr.,12 this
Court held that the use of the word ‘first’ between the words ‘sue’
and ‘accrued’, would mean that if a suit is based on multiple
causes of action, the period of limitation will begin to run from the
12 (2011) 9 SCC 126.
date when the right to sue first accrues. That is, if there are
successive violations of the right, it would not give rise to a fresh
cause of action, and the suit will be liable to be dismissed, if it is
beyond the period of limitation counted from the date when the
right to sue first accrued.
A three-Judge Bench of this Court in State of Punjab v.
Gurdev Singh,13 held that the Court must examine the plaint and
determine when the right to sue first accrued to the plaintiff, and
whether on the assumed facts, the plaint is within time. The words
“right to sue” means the right to seek relief by means of legal
proceedings. The right to sue accrues only when the cause of
action arises. The suit must be instituted when the right asserted
in the suit is infringed, or when there is a clear and unequivocal
threat to infringe such right by the defendant against whom the
suit is instituted.
Order VII Rule 11(d) provides that where a suit appears from
the averments in the plaint to be barred by any law, the plaint shall
be rejected.
13 (1991) 4 SCC 1.
15. Analysis and Findings
We have carefully perused the averments in the plaint read
with the documents relied upon.
15.1 On a reading of the plaint and the documents relied upon,
it is clear that the Plaintiffs have admitted the execution of
the registered Sale Deed dated 02.07.2009 in favour of
Defendant No.1/Respondent No.1 herein.
Para 5 of the plaint reads as :
“(5) …Thus, subject of the aforesaid terms the plaintiffs had
executed sale deed selling the suit property to the opponent
no.1 vide sale deed dated 02/07/2009 bearing Sr.No.
5158…”
The case made out in the Plaint is that even though
they had executed the registered Sale Deed dated
02.07.2009 for a sale consideration of Rs.1,74,02,000, an
amount of only Rs.40,000 was paid to them. The
remaining 31 cheques mentioned in the Sale Deed, which
covered the balance amount of Rs.1,73,62,000 were
alleged to be “bogus” or “false”, and allegedly remained
unpaid.
We find the averments in the Plaint completely
contrary to the recitals in the Sale Deed dated 02.07.2009,
which was admittedly executed by the Plaintiffs in favour
of Respondent No.1. In the Sale Deed, the Plaintiffs have
expressly and unequivocally acknowledged that the entire
sale consideration was “paid” by Defendant
No.1/Respondent No.1 herein to the Plaintiffs.
Clauses 3 and 4 of the Sale Deed are extracted
hereinbelow for ready reference : -
“Since the full amount of consideration of the sale as
decided above, has since been paid by you the Vendees to
we the Vendors of this sale deed, for which we the Vendors
of this sale deed acknowledge the same so, we or our
descendants, guardian or legal heirs is to take any dispute
or objection in future that such amount is not received, or is
received less, and if we do so then, the same shall be void
by this deed and, if any loss or damage occurs due to the
same then, we the Vendors of this sale deed and
descendants, guardians, legal heirs of we the vendors are
liable to the pay the same to you the vendees or your
descendants, guardian, legal heirs and you can recover the
same by court proceedings.
(4) We the party of Second part i.e. Vendors of the sale deed
since received full consideration on the above facts, the
physical possession, occupancy of the land or the property
mentioned in this sale deed has been handed over to you
the Vendee of this sale deed, and that has been occupied
and taken in possession of the land or property mentioned
in this sale deed by you the Vendee of this sale deed by
coming at the site and therefore, we the Vendors of this sale
deed have not to raise any dispute in the future that the
possession of the land or the property has not been handed
over to you. …”
(emphasis supplied)
The Sale Deed records that the 36 cheques
covering the entire sale consideration of Rs.1,74,02,000
were “paid” to the Plaintiffs, during the period between
07.07.2008 to 02.07.2009.
15.2 If the case made out in the Plaint is to be believed, it
would mean that almost 99% of the sale consideration i.e.
Rs.1,73,62,000 allegedly remained unpaid throughout. It
is, however inconceivable that if the payments had
remained unpaid, the Plaintiffs would have remained
completely silent for a period of over 5 and ½ years,
without even issuing a legal notice for payment of the
unpaid sale consideration, or instituting any proceeding
for recovery of the amount, till the filing of the present suit
in December 2014.
15.3 The Plaintiffs have made out a case of alleged nonpayment
of a part of the sale consideration in the Plaint,
and prayed for the relief of cancellation of the Sale Deed on
this ground.
Section 54 of the Transfer of Property Act, 1882
provides as under :
“54. ‘Sale’ defined.—‘Sale’ is a transfer of ownership in
exchange for a price paid or promised or part-paid and part promised.”
The definition of “sale” indicates that there must
be a transfer of ownership from one person to another i.e.
transfer of all rights and interest in the property, which
was possessed by the transferor to the transferee. The
transferor cannot retain any part of the interest or right in
the property, or else it would not be a sale. The definition
further indicates that the transfer of ownership has to be
made for a “price paid or promised or part paid and part
promised”. Price thus constitutes an essential ingredient
of the transaction of sale.
In Vidyadhar v. Manikrao & Anr. (1999) 3 SCC 573. this
Court held that the words “price paid or promised or part paid and part promised” indicates that actual payment of the whole
of the price at the time of the execution of the Sale Deed is
not a sine qua non for completion of the sale. Even if the
whole of the price is not paid, but the document is
executed, and thereafter registered, the sale would be
complete, and the title would pass on to the transferee
under the transaction. The non-payment of a part of the
sale price would not affect the validity of the sale. Once the
title in the property has already passed, even if the balance
sale consideration is not paid, the sale could not be
invalidated on this ground. In order to constitute a “sale”,
the parties must intend to transfer the ownership of the
property, on the agreement to pay the price either in
praesenti, or in future. The intention is to be gathered from
the recitals of the sale deed, the conduct of the parties, and
the evidence on record.
In view of the law laid down by this Court, even if
the averments of the Plaintiffs are taken to be true, that
the entire sale consideration had not in fact been paid, it
could not be a ground for cancellation of the Sale Deed.
The Plaintiffs may have other remedies in law for recovery
of the balance consideration, but could not be granted the
relief of cancellation of the registered Sale Deed.
We find that the suit filed by the Plaintiffs is vexatious,
meritless, and does not disclose a right to sue. The plaint
is liable to be rejected under Order VII Rule 11 (a).
15.4 The Plaintiffs have averred in the plaint that the period
of limitation commenced on 21.11.2014, when they
obtained a copy of the index of the Sale Deed dated
02.07.2009, and discovered the alleged fraud committed
by Defendant No.1.
The relevant extract from the plaint in this regard
is set out hereinbelow :–
“(7) … Not only that but also, on obtaining the copy of the
index of the sale deed of the acts committed by the
Opponent No.1, 4, 5 and on obtaining the certified copy of
the sale deed, we the plaintiffs could come to know on 21-
11-2014 that, the Opponent No.1 had in collusion with
Opponent No.4, 5 mentioned the false cheques stated below
in the so called sale deed with intention to commit fraud and
no any consents of we the plaintiffs have also been obtained
in that regard. The said cheques have not been received to
we the plaintiffs or no any amounts of the said cheques
have been credited in accounts of we the plaintiffs. Thus,
the cheques which have been mentioned in the agreement
caused to have been executed by the Opponent No.1, the
false cheques have been mentioned of the said amounts.
Not only that but also, the agricultural land under the suit
had been sold by the Opponent No.1 to the Opponent No.2
Dillipbhai Gordhanbhai Sonani and the Opponent No.3,
Laljibhai Gordhanbhai Sonani on 1-4-2013 for
Rs.2,01,00,000/- as if the said sale deed was having clear
title deeds. On taking out the copy of the said sale deed with
seal and signature on 21-11-2014, it could come to the
knowledge of we the plaintiffs. We the plaintiffs have not
done any signature or witness on the said agreement. The
said agreement is not binding to we the plaintiffs. Since the
said agreement is since null, void and invalid as well as
illegal, therefore, no any Court fee stamp duty is required to
be paid by we the plaintiff on the said agreement and for
that we the plaintiffs rely upon the judgment of the Supreme
Court in A.I.R.2010, Supreme Court, Page No. 2807. …”
(emphasis supplied)
The plea taken in the plaint that they learnt of the
alleged fraud in 2014, on receipt of the index of the Sale
Deed, is wholly misconceived, since the receipt of the index
would not constitute the cause of action for filing the suit.
On a reading of the plaint, it is clear that the cause of
action arose on the non-payment of the bulk of the sale
consideration, which event occurred in the year 2009. The
plea taken by the Plaintiffs is to create an illusory cause of
action, so as to overcome the period of limitation. The plea
raised is rejected as being meritless and devoid of any
truth.
15.5 The conduct of the Plaintiffs in not taking recourse to
legal action for over a period of 5 and ½ years from the
execution of the Sale Deed in 2009, for payment of the
balance sale consideration, also reflects that the
institution of the present suit is an after-thought. The
Plaintiffs apparently filed the suit after the property was
further sold by Respondent No.1 to Respondent Nos. 2 and
3, to cast a doubt on the title of Respondent No.1 to the
suit property.
15.6 The Plaintiffs have placed reliance on the Order of the
Collector dated 19.06.2009 with the plaint. The Order
reveals that the permission was granted subject to the
fulfilment of certain conditions. Clause 4 of the permission
states that :
“(4) The purchaser of the land/property, shall have to make
the payment of the price of the land by cheque and its
reference shall require to be made in the Sale Deed.”
If the Plaintiffs had a genuine grievance of nonpayment
of the balance sale consideration, the Plaintiffs
could have moved for revocation of the permission granted
by the Collector on 19.06.2009.
Clause 6 of the Order provided that :
“(6) On making violation of any of the aforesaid terms, the
permission shall automatically be treated as cancelled and,
separate proceeding shall be taken up for the violation of
the terms and conditions.”
The Plaintiffs did not make any complaint
whatsoever to the Collector at any point of time. The
conduct of the Plaintiffs is reflective of lack of bona fide.
15.7 The present case is a classic case, where the plaintiffs
by clever drafting of the plaint, attempted to make out an
illusory cause of action, and bring the suit within the
period of limitation.
Prayer 1 of the plaint reads as :
“1) The suit property being agricultural land of old tenure of
Revenue Survey No.610 whose block Number is 573
situated at village Mota Varachha, Sub-district : Surat city,
Dis : Surat has been registered by the opponent No.1 of this
case in office of the Sub-Registrar (Katar Gam) at Surat vide
Serial No.5158 in book No.1. Since, the same is illegal, void,
in-effective and since the amount of consideration is
received by the plaintiffs, and by holding that it is not
binding to the plaintiffs and to cancel the same, and since
the sale deed as aforesaid suit property has been executed
by the opponent No.1 to the opponent No.2,3, it is registered
in the office of Sub-registrar, Surat (Rander) on 01/04/2013
vide serial No.443 which is not binding to we the plaintiffs.
Since, it is illegal, void, in-effective and therefore, this
Hon’ble Court may be pleased to cancel the same and this
Hon’ble Court may be pleased to send the Yadi in that
regard to the Sub-registrar, Surat (Karat Gam) and the Sub-
Registrar (Rander) in regard to the cancellation of both the
aforesaid documents.”
The Plaintiffs deliberately did not mention the date
of the registered Sale Deed dated 02.07.2009 executed by
them in favour of Respondent No.1, since it would be
evident that the suit was barred by limitation. The prayer
however mentions the date of the subsequent Sale Deed
i.e. 01.04.2013 when the suit property was further sold by
Respondent No.1 to Respondent Nos. 2 & 3.
The omission of the date of execution of the Sale
Deed on 02.07.2009 in the prayer clause, was done
deliberately and knowingly, so as to mislead the Court on
the issue of limitation.
15.8 The delay of over 5 and ½ years after the alleged cause
of action arose in 2009, shows that the suit was clearly
barred by limitation as per Article 59 of the Limitation Act,
1963. The suit was instituted on 15.12.2014, even though
the alleged cause of action arose in 2009, when the last
cheque was delivered to the Plaintiffs.
The Plaintiffs have failed to discharge the onus of
proof that the suit was filed within the period of limitation.
The plaint is therefore, liable to be rejected under Order VII
Rule 11 (d) of CPC.
Reliance is placed on the recent judgment of this
Court rendered in Raghwendra Sharan Singh v. Ram
Prasanna Singh (Dead) by LRs.15 wherein this Court held
the suit would be barred by limitation under Article 59 of
the Limitation Act, if it was filed beyond three years of the
execution of the registered deed.
15.9 The Plaintiffs have also prayed for cancellation of the
subsequent Sale Deed dated 01.04.2013 executed by
Respondent No.1 in favour of Respondent Nos. 2 and 3;
since the suit in respect of the 1st Sale Deed dated
02.07.2009 is rejected both under clauses (a) and (d) of
Order VII Rule 11, the prayer with respect to the 2nd Sale
Deed dated 01.04.2003 cannot be entertained.
16. The present suit filed by the Plaintiffs is clearly an abuse of
the process of the court, and bereft of any merit.
The Trial Court has rightly exercised the power under Order
VII Rule 11 CPC, by allowing the application filed by Respondent
Nos. 2 & 3, which was affirmed by the High Court.
In view of the aforesaid discussion, the present Civil Appeal
is dismissed with costs of Rs. 1,00,000/- payable by the Appellant
15 Civil Appeal No.2960/2019 decided on 13.03.2019.
to Respondent Nos. 2 and 3, within a period of twelve weeks from
the date of this Judgment.
Pending applications, if any, are accordingly disposed of.
...…...............………………J.
(L. NAGESWARA RAO)
...…...............………………J.
(INDU MALHOTRA)
July 09, 2020;
New Delhi.
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