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TMI Blog2020 (7) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiffs would have remained completely silent for a period of over 5 and 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 - 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. 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 - the suit filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey 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 @ ₹ 2000/- per sq. mtr., which would work out to ₹ 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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) Code of Civil Procedure. 10. Aggrieved by the Judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Civil Procedure, 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 duplica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictly 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 plaint [Liverpool London S.P. I Assn. Ltd. v. M.V. Sea Success I and Anr., (2004) 9 SCC 512], 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact [D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941]. 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 v. State of Maharashtra. (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. 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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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: 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. and Anr. v. Union of India and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly 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, occu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titute 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 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 paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 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 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 Code of Civil Procedure. Reliance is placed on the recent judgment of this Court rendered in Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by LRs. [Civil Appeal No. 2960/2019 decided on 13.03.2019] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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