Dahiben vs Arvindbhai Kalyanji Bhanusali

Dismissing the appeal, the Court

HELD: 1. 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. [Para 15.2][712-D-E]

2.1 In Vidyadhar v. Manikrao & Anr. 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. [Para 15.3][713-B-E]

2.2 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. [Para 15.3][713-F-G]

3. This Court finds 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). [Para 15.3][713-G-H]

4. 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. [Para 15.5][715-C-D]

5. 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. 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. [Para 15.7][716-B; F-H]

6. 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. [Para 15.8][717-A-B]

Azhar Hussain v. Rajiv (1986) Suppl. SCC 315 : [1986]

2 SCR 782; Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I & Anr. (2004) 9 SCC 512 : [2003] 5 Suppl. SCR 851; Swamy Atmanand v. Sri Ramakrishna Tapovanam (2005) 10 SCC 51 : [2005] 3 SCR 556; T. Arivandandam v. T.V. Satyapal & Anr. (1977) 4 SCC

467 : [1978] 1 SCR 742 – relied on.

Maharaj Shri Manvendrasinhji Jadeja v. Rajmata Vijaykunverba w/o Late Maharaja Mahedrasinhji

(1998) 2 GLH 823; Sopan Sukhdeo Sable v. Assistant Charity Commissioner (2004) 3 SCC 137 : [2004] 1 SCR 1004; Hardesh Ores (P.) Ltd. v. Hede & Co. (2007)

5 SCC 614 : [2007] 6 SCR 608; D. Ramachandran v. R.V. Janakiraman (1999) 3 SCC 267 : [1999] 1 SCR 983; Vijay Pratap Singh v. DukhHaran Nath Singh AIR 1962 SC 941 : [1962] Suppl. SCR 675; Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557 : [2002] 5 Suppl. SCR 491; I.T.C. Ltd. v. Debt Recovery Appellate Tribunal (1998) 2 SCC 170; Madanuri Sri

Ramachandra Murthy v. Syed Jalal (2017) 13 SCC 174 : [2017] 5 SCR 294; Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr. (2011) 9 SCC 126 : [2011] 15 SCR 299; State of Punjab v. Gurdev Singh (1991) 4 SCC 1 : [1991] 3 SCR 663; Vidyadhar v. Manikrao & Anr. (1999) 3 SCC 573 : [1999] 1 SCR 1168;

Raghwendra Sharan Singh v. Ram Prasanna Singh

(Dead) by LRs. [2019] 4 SCR 1069 – referred to.