Bombay High Court
Rameshkumar Jetmal Bagaria Huf Thr ... vs Kailash Nanasaheb Pawar on 4 September, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:20314-DB
1 FA-1521-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1521 OF 2019
Mr. Rameshkumar Jeetmal Bagaria HUF
Age: 66 years, Occu.: Agri. & Business,
Through Karta
Mr. Rameshkumar Jeetmal Bagaria
Proprietor of M/s. Bagaria Associated Agencies
Having its offce at 5/105, Nityanand Nagar,
Swami Nityanand Marg, Opp. Andheri Railway
Station, Mumbai - 400069
Through Power of Attorney Holder
Mr. Ashwinikumar S/o. Rameshkumar Bagaria
Age: 33 years, Occu.: Business,
R/o. Guru Ramdas Nagar,
Aurangabad - 431 001
... Appellant
[Orig. Plaintiff]
VERSUS
Mr. Kailash S/o. Nanasaheb Pawar
Age: 52 years, Occu.: Agri., & Business
R/o. N-5, Satyam Nagar, CIDCO, Aurangabad.
Proprietor of Aditya Builders & Land Developers
... Respondent
[Orig. Defendant]
.....
Appearance :-
Mr. Shah Subodh P., Advocate for Appellant
Mr. R. R. Karpa h/f Mr. Y. R. Shinde, Advocate for Respondent
.....
CORAM : R. G. AVACHAT &
NEERAJ P. DHOTE, JJ.
Reserved on : 2nd August, 2024
Pronounced On : 4th September, 2024
2 FA-1521-2019.odt
JUDGMENT :
[ PER NEERAJ P. DHOTE, J.]
1. By the present Appeal under Section 96 of the Code of
Civil Procedure, 1908 [hereinafter referred to as 'CPC'], the
Original Plaintiff has challenged dismissal of the Special Civil
Suit No.105/2016 vide Judgment and Order / Decree dated
14/02/2019 fled by him for adjudication of sale deed as
voidable, its cancellation and possession of suit property. The
parties are referred as per their status / nomenclature in the
Suit.
2. The facts, giving rise to the present Appeal are as follows :-
[I] The Plaintiff instituted the above referred Civil Suit
contending that, he executed the sale deed bearing
No.8126/2015 for the total consideration of Rs.2,45,00,000/-
[Rupees Two Crore Fourty Five Lakhs] on 21/12/2015 in favour
of the Defendant in respect of the agricultural land bearing Gat
Nos. 846, 847, 848 and 849, total admeasuring 4 Hectors,
situated at village Bidkin, Taluka Paithan, District Aurangabad.
On the date of execution of sale deed, the Defendant handed
over the post-dated cheques to the Plaintiff and the Plaintiff
handed over Form No.4 duly signed by him to the Defendant for
the purpose of mutation, after realization of the cheque. The
terms and conditions were incorporated in the sale deed. The
Defendant was not authorized to execute the sale deed in
respect of the suit land with third party before realization of the
post-dated cheques. Default and failure to observe the terms
and conditions of the sale deed, would result in automatic
cancellation of the transaction and the amount paid by the
Defendant will be forfeited without any notice and the
3 FA-1521-2019.odt
Defendant will have no right to claim refund of the amount nor
any right over the suit property. Cheques were the essence of
sale deed.
[II] On 01/01/2016, the Plaintiff submitted an Application to
the Talathi, Bidkin Offce requesting not to mutate the
Defendant's name in the revenue records. After the cheque
dated 30/01/2016 bearing No.312740 was encashed, the
Plaintiff got the knowledge that the Defendant violated the
terms and conditions of the sale deed by mutating his name in
the revenue records without realization of the post-dated
cheques. The Defendant removed one demand draft for
Rs.85,00,000/- [Rupees Eighty Five Lakhs Only] and sent its
copy to the Plaintiff. The Defendant illegally and with mala fde
intention started obstructing the possession of Plaintiff over the
adjacent remaining land. Thus, the Plaintiff approached the
learned Civil Court with the aforesaid suit with the prayers as
referred above in Paragraph No.1
[III] The Defendant responded to the Plaint by fling written
statement at Exhibit - 28. He admitted the transaction with the
Plaintiff in respect of the suit property by way of the
aforementioned sale deed. However, he denied the case of
Plaintiff. The total consideration amount was agreed for
Rs.5,55,00,000/- [Rupees Five Crore Fifty Five Lakhs] and he
paid the Plaintiff Rs.3,10,00,000/- [Rupees Three Crore Ten
Lakh] in cash for the said transaction. The Plaintiff had
encashed the cheques mentioned in the sale deed. After the
execution of sale deed, he mutated his name in the revenue
4 FA-1521-2019.odt
records as the Plaintiff handed over the signed Form No.4 to
him. The Plaintiff did not deposit the cheque of Rs.85,00,000/-
[Rupees Eight Five Lakhs Only] with a view to create false
litigation. The default was on the part of Plaintiff. The
Defendant abided by all the terms and conditions mentioned in
the sale deed. As the Plaintiff requested, he prepared the
demand draft of Rs.85,00,000/- [Rupees Eight Five Lakhs Only]
in the name of Plaintiff and sent the xerox copy to make the
Plaintiff aware of the same. The sale deed created absolute
rights in the Defendant. He was always ready and willing to
perform his part of contract. With the mala fde intention, the
Plaintiff created the litigation and prayed for dismissal of the
Suit.
3. The learned Civil Court framed the issues, which are re-
produced below with their fndings:
Sr. Issues Findings
Nos.
1. Whether plaintiff proves that, sale deed dated No
21st December, 2015 is voidable at his option on
account of breach of condition by the defendant ?
2. Whether suit is within limitation for relief of Yes
declaration as prayed ?
3. Whether plaintiff is entitled for relief of No
declaration as prayed ?
4. Whether plaintiff is entitled for the relief of No
possession as prayed ?
5. In the event of grant of possession whether No
plaintiff is entitled for mense proft ?
6. What order & decree The suit is
dismissed.
4. The Plaintiff tendered his evidence affdavit in support of
his Plaint at Exhibit - 33/C and he was cross-examined by the
5 FA-1521-2019.odt
Defendant. The Defendant tendered his evidence affdavit at
Exhibit - 61 in support of written statement and he was cross-
examined by the Plaintiff. The following documents are brought
on record in the evidence by the parties.
Sr. Documents Exhibits
Nos.
1. Power of Attorney Exh. 49
2. Letter to Talathi by the plaintiff. Exh. 50
3. Mutation Entry No.11364 Exh. 52
4. Reply notice through Adv. Nehri on behalf of Exh. 53
plaintiff
5. Certifed Copy of sale deed Exh. 56
6. Legal Notice by defendant Exh. 57
7. News paper publication published in Lokmat Exh. 58
8. Cheque No.312741 Exh. 79
5. After the parties led their evidence, the learned Trial
Court on hearing the parties and appreciating the evidence on
record passed the impugned Judgment and Order / Decree.
6. Heard learned Advocate for the Appellant/Plaintiff and
the learned Advocate for the Respondent / Defendant.
7. It is submitted by the learned Advocate for the Plaintiff
that he consciously executed the sale deed. The terms and
conditions were clearly mentioned in the sale deed. One of the
conditions in the sale deed was that the Defendant will not
mutate his name in the revenue record, unless the entire
payment was made, however, on the third day of the sale deed,
the Defendant mutated his name. The Plaintiff had written to
the revenue authority not to mutate the name of Defendant in
the revenue record in view of the condition 'B' in the sale deed.
6 FA-1521-2019.odt
Since the Plaintiff was not aware of the mutation entry, he
encashed the cheque dated 30/01/2016. After the Plaintiff
came to know about the mutation of Defendant's name in the
revenue record of the suit property, he did not tender the last
cheque for encashment. The Defendant sent a notice to the
Plaintiff as to why the cheque was not deposited with the Bank
and enclosed the copy of Demand Draft of February - 2016.
When the last cheque was not deposited with the Bank, there
was no occasion for the Defendant to remove the DD and send
the copy of the same to the Plaintiff. This show that there was
no suffcient balance in the Defendant's account so as to honour
the last cheque. Had the intention of the Defendant been clear,
he would have sent the original DD to the Plaintiff. This show
mala fde intention on the part of the Defendant and that he
was not ready and willing to perform his part of contract.
8. He further submitted that there was no cross-examination
of the Plaintiff by the Defendant on the point that the Plaintiff
knew about the mutation entry prior to deposit of the frst post-
dated cheque. Incorporation of the terms and conditions in the
sale deed was to secure the interest of the parties due to
uncertainties in the market. The learned Civil Court made
wrong observations in the Judgment and Order. The issue
involved in the suit revolves around the provisions of Sections
19, 21 and 31 of the Transfer of Property Act, 1982 [hereinafter
referred to as 'the T.P. Act']. The impugned Judgment and Order
was unsustainable in the eye of law and the same be quashed
and set aside. In support of his submissions, he relied upon the
following Judgments : -
7 FA-1521-2019.odt
[i] Kaliaperumal Versus Rajagopal and Another,
(2009) 4 SCC 193
[ii] Muddasani Venkata Narsaiah (Dead) through Legal
Representatives Versus Muddasani Sarojana,
(2016) 12 SCC 288
[iii] Sambhaji Laxmanrao Pawar Versus Abdul Wahed s/o
Rahmatullah, [1995(1) Mh.L.J. 22]
[iv] Bharat Aluminium Company v. Kaiser Aluminium
Technical Services Inc., (2016) 4 SCC 126
[v] Janak Dulari Devi and another Versus Kapildeo Rai
and Another, (2011) 6 SCC 555
9. It is submitted by learned Advocate for the Defendant that
there was no misrepresentation by the Defendant. The main
contention of the Plaintiff was breach of condition incorporated
in the sale deed by the Defendant. There is nothing to show that
there was violation by the Defendant to make the payment. The
sale deed was duly executed and as Form No. 4 was duly signed
by the Plaintiff, the mutation entry was carried out after the
sale deed. On execution of the sale deed, vested right got
created in favour of the Defendant. It was the Plaintiff who did
not deposit the cheque with the Bank and the reason for non
deposit of cheque was nothing but an attempt to frustrate the
transaction. The reason for making the application to the
Talathi by the Plaintiff in January-2016 show that he knew
about the mutation and the said step was nothing but an act to
show ignorance about the mutation entry. Though the name of
Defendant was mutated in the revenue record, the Plaintiff
deposited/presented the cheque in the Bank, which was
honoured.
8 FA-1521-2019.odt
10. He further submitted that on execution of the sale deed,
all the rights got vested in the Defendant in respect of the suit
property. The transaction was covered by the provisions of
Section 54 of the T.P Act. As the Plaintiff did not present the
last post-dated cheque given by the Defendant, there was no
cause of action to fle the suit. The act of Plaintiff is nothing but
an 'U' turn to entangle the suit property in litigation. Since
beginning, the intention of the Defendant was clear and on fling
of the suit, the Defendant deposited Rs. 80.00 Lakhs in the
Court. Mutation was not the essential condition for completing
the sale. There are no pleadings as to when the Plaintiff came
to know about the mutation entry and, therefore, the oral
contention will not be acceptable. There was no merit in the
Plaintiff's case and the suit was rightly dismissed. In support of
his contention, he cited the following Judgment : -
[I] Lakshmi Narain Barnwal alias Lakshmi
Narayan, Appellant v. Jagdish Singh and
another, Respondents, AIR 1991 PATNA 99
11. Before adverting to the case in hand, the above referred
Judgments are considered.
[a] In the case of Kaliaperumal Versus Rajagopal and Another
[Supra], the question for consideration was whether title to the
disputed properties passed to the Appellant therein, when the
sale deed dated 26/06/1983 was registered on 26/10/1983,
though admittedly no amount was paid towards consideration
to the respondents. In that case, neither the possession of
properties nor the title deeds were delivered to the purchaser
either on the date of sale or thereafter and it was held that the
parties intended that title of ownership to the suit properties
would pass to the purchaser, only after payment of full
9 FA-1521-2019.odt
consideration by the purchaser to the vendor as a condition
precedent and the parties did not intend that there should be
transfer of ownership merely on execution and registration of
the deed. It is further observed in Paragraph Nos.18 and 19 as
follows:-
"18. Normally, ownership and title to the property will pass to the
purchaser on registration of the sale deed with effect from the
date of execution of the sale deed. But this is not an invariable
rule, as the true test of passing of property is the intention of
parties. Though registration is prima facie proof of an intention
to transfer the property, it is not proof of operative transfer if
payment of consideration (price) is a condition precedent for
passing of the property.
19. The answer to the question whether the parties intended that
transfer of the ownership should be merely by execution and
registration of the deed or whether they intended the transfer of
the property to take place, only after receipt of the entire
consideration, would depend on the intention of the parties. Such
intention is primarily to be gathered and determined from the
recitals of the sale deed. When the recitals are insufficient or
ambiguous the surrounding circumstances and conduct of parties
can be looked into for ascertaining the intention, subject to the
limitations placed by Section 92 of Evidence Act. "
[b] In the case of Muddasani Venkata Narsaiah (Dead)
through Legal Representatives Versus Muddasani Sarojana
[Supra], the Plaintiff fled Suit for possession of disputed
property and mesne proft based on the title. The property was
sold to the Plaintiff by registered sale deed dated 25/04/1981
and the possession was also delivered. Thereafter, on
12/06/1981 the Defendant forcibly evicted the Plaintiff from the
property. It is further observed in Paragraph No.14 as follows:-
"14. It is settled law that denial for want of knowledge is no
denial at all. The execution of the sale deed was not specifically
denied in the written statement. Once the execution of the sale
deed was not disputed it was not necessary to examine
Buchamma to prove it. The provisions contained in Order 8 Rule
5 require pleadings to be answered specifically in written
statement. This Court in Jaguri Sah & Ors. v. Dwarika Prasad
10 FA-1521-2019.odt
Jhunjhunwala AIR 1967 SC 109 has laid down that if a defendant
has no knowledge of a fact pleaded by the plaintiff is not
tantamount to a denial of existence of fact, not even an implied
denial. Same decision has been followed by Madhya Pradesh High
Court in Dhanbai v. State of M.P. & Ors. 1978 MPLJ 717. The High
Court of Madhya Pradesh in Samrathmal & Anr. v. Union of India
AIR 1959 MP 305 relying on P.L.N.K.L. Chettyar Firm v. Ko Lu
Doke AIR 1934 Rang 278 and Lakhmi Chand v. B. Ram Lal
Kapoor Vakil AIR 1931 All. 423, had also opined that if the
defendant did not know of a fact, denial of the knowledge of a
particular fact is not a denial of the fact and has not even the
effect of putting the fact in issue."
[c] In the case of Sambhaji Laxmanrao Pawar Vs. Abdul
Wahed s/o Rahmatullah [Supra], one of the point for
consideration was whether the agreement dated November 28,
1981 was substituted by the second agreement dated March 30,
1982. In that matter, the challenge was to the decree for
specifc performance of agreement to sell in the suit fled by the
vendee. It is observed in Paragraph No.9 that the written
statement must deal specifcally with each allegation of fact in
the plaint and when the defendant denies any such fact, he
must not do so evasively but answer the point of substance. If
his denial of a fact is not specifc but evasive, the said fact shall
be taken to be admitted. In such an event, the admission itself
being proof, no other proof is necessary . It is observed that a
reading of the document dated March 30, 1982 in unequivocal
terms, it suggests that it was not executed in substitution of the
earlier agreement. It is observed that the vendor failed to rebut
the presumption and in fact no such foundation was laid in the
written statement or any proof at the trial, the vendee was
throughout willing to perform his part of the contract and in
fact, agreed for the additional price demanded by the vendor to
avoid breach of the agreement and the Appeal was dismissed.
11 FA-1521-2019.odt
[d] In the case of Bharat Aluminium Company Vs. Kaiser
Aluminium Technical Services Inc. [ Supra], the question for
consideration was whether the parties by agreement, express
or implied, have excluded wholly or partly, Part - I of the
Arbitration Act. While dealing with the relevant clauses of the
arbitration agreement therein, it was observed in Paragraph
No.9 that, one should not strain too much to interpret an
agreement between two parties as in the case of a statutory
interpretation. The approach in analysing the terms of
agreement should be straight and plain but at the same time
cohesive and logical. It is observed in Paragraph Nos.10 and 11
as follows :-
"10. In the matter of interpretation, the court has to make
different approaches depending upon the instrument falling for
interpretation. Legislative drafting is made by experts and is
subjected to scrutiny at different stages before it takes final
shape of an Act, Rule or Regulation. There is another category
of drafting by lawmen or document writers who are
professionally qualified and experienced in the field like drafting
deeds, treaties, settlements in court, etc. And then there is the
third category of documents made by laymen who have no
knowledge of law or expertise in the field. The legal quality or
perfection of the document is comparatively low in the third
category, high in second and higher in first. No doubt, in the
process of interpretation in the first category, the courts do
make an attempt to gather the purpose of the legislation, its
context and text. In the second category also, the text as well
as the purpose is certainly important, and in the third category
of documents like wills, it is simply intention alone of the
executor that is relevant. In the case before us, being a
contract executed between the two parties, the court cannot
adopt an approach for interpreting a statute. The terms of the
contract will have to be understood in the way the parties
wanted and intended them to be. In that context, particularly in
agreements of arbitration, where party autonomy is the
grundnorm, how the parties worked out the agreement, is one
of the indicators to decipher the intention, apart from the plain
or grammatical meaning of the expressions and the use of the
expressions at the proper places in the agreement.
11. Contextually, it may be noted that in the present case, the
12 FA-1521-2019.odt
respondent had invoked the provisions of English law for the
purpose of the initiation of the unsettled disputes. It has hence,
while interpreting an agreement, to be kept in mind that the
parties, intended to avoid impracticable and inconvenient
processes and procedures in working out the agreement. Potter
J. made a similar observation in Cargill International S.A. v.
Bangladesh Sugar and Food Industries Corpn. (1998) 2 ALL ER
406 (CA) :
"As Saville, J. observed in another context in Palm Shipping
Inc. v. Kuwait Petroleum Corpn. (1988) 1 Lloyd's Rep 500 :
'... It is not a permissible method of construction to
propound a general or generally accepted
principal ... and then ... to seek to force
the provisions of the (contract) into the
straightjacket of that principle...'
On the other hand, modern principles of construction require the
court to have regard to the commercial background, the context
of the contract and the circumstances of the parties and to
consider whether, against that background and in that context, to
give the words a particular or restricted meaning would lead to
an apparently unreasonable and unfair result."
[e] In the case of Janak Dulari Devi and Another Vs. Kapildeo
Rai and Another [Supra], the suit was for specifc performance.
While dealing with one of the questions posed for consideration,
it is observed that where the intention of the parties is that
passing of title would depend upon the passing of consideration,
evidence is admissible for the purpose of contradicting the
recital in the deed acknowledging the receipt of consideration.
Considering the previous Judgment of the Hon'ble Supreme
Court of India, it is further observed that where the sale deed
recites that on receipt of the total consideration by the vendor,
the property was conveyed and possession was delivered, the
clear intention is that title would pass and possession would be
delivered only on payment of the entire sale consideration.
Therefore, where the sale deed recited that on receipt of the
entire consideration, the vendor was conveying the property,
but the purchaser admits that he has not paid the entire
13 FA-1521-2019.odt
consideration [or if the vendor proves that the entire sale
consideration was not paid to him], title in the property would
not pass to the purchaser.
There is further reference to the previous Judgment
of Patna High Court, wherein, it is observed that it is essentially
a matter of intention of the parties which has to be gathered
from the document itself but if the document is ambiguous then
from the attending circumstances, subject to the provisions of
Section 92 of the Evidence Act and in construing a document
due weight should be given to all the recitals and the
subsequent recitals as regards payment of consideration at the
time of exchange of equivalents and putting the vendee into
possession should also be given equal weight. In that case, it
was observed that on execution of registration of sale deed
dated 22/02/1988 in favour of the Appellants, title did not pass
to the purchaser and possession was not delivered.
[f] In the case of Lakshmi Narain Barnwal alias Lakshmi
Narayan, v. Jagdish Singh and Another [Supra], the suit was
for declaration of title and recovery of possession. It is
observed in Paragraph No.32 that, the question as to whether,
upon execution of the deed of sale, title passes to the vendee or
not, depends upon the intention of the parties. In terms of
Section 54 read with Section 8 of the Transfer of Property Act,
ordinarily the title of the vendor passes to the vendee on
registration of the deed of sale irrespective of the fact as to
whether the consideration money either in whole or in part has
been paid by the vendee to the vendor or not, subject of course a
contrary intention of the parties to the said transaction.
It is further observed in Paragraph No.37 that, a
14 FA-1521-2019.odt
registered deed of sale carries with it a sanctity of a genuine
transaction and in this view of the matter the burden of proof
was heavy upon the plaintiff to show that despite the execution
and registration of the said deed of sale, no title passed on to
Ganesh Singh as he did not pay the consideration amount to Sri
Laddu Lal, in view of the intention of the parties that unless
consideration amount is paid, no title will pass on to the vendee .
12. After hearing both the sides and scrutinizing the evidence
available on record, following are the aspects, on which, both
the sides are on one page :-
[i] The Plaintiff sold the suit property to the Defendant vide
registered sale deed bearing Nos.8126/2015 [Exhibit - 77]
dated 21/12/2015.
[ii] Till the date of execution of sale deed, the Defendant paid
Rs.80,00,000/- [ Rupees Eight Lakhs Only] to the Plaintiff.
[iii] At the time of execution of sale deed, Defendant issued two
post-dated cheques amounting to Rs.80,00,000/- [Eighty
Lakhs Only] and Rs.85,00,000/- [Eighty Five Lakhs Only]
bearing dated 30/01/2016 and 02/03/2016, respectively
towards balance consideration.
[iv] On execution of sale deed, the Plaintiff handed over the
possession of suit property to the Defendant.
[v] The cheque dated 30/01/2016 was enchased by the
Plaintiff.
[vi] The Defendant got his name mutated in the records of the
suit property on 23/12/2015 which came to be approved
on 14/01/2016 [Exhibit - 52].
[vii] The Plaintiff did not deposit the second cheque dated
02/03/2016 for encashment.
15 FA-1521-2019.odt
13. Following points arise for our determination :-
[1] Whether the Plaintiff established that the sale of suit
property i.e. sale deed dated 21/12/2015 was voidable at
his option for breach of condition by the Defendant ?
[2] Whether impugned Judgment and Order requires
interference ?
[3] What Order ?
As to Point Nos.1 to 3 :-
14. The Plaintiff sought the Decree on two [2] grounds ;
[1] Mutation by the Defendant before realization of all the
post-dated cheques and [2] Creating third party interest by the
Defendant in the suit property before realization of all post-
dated cheques. The controversy between the parties revolve
around the above referred sale deed. It would be proftable to re-
produce the relevant extracts from the above referred sale
deed.
"The vendor and the purchaser have mutually decided to
execute sale deed of said agricultural land admeasuring 4
Hector, which more particularly described in Para A here-in-
above for total consideration of Rs.2,45,00,000/- [Rupees Two
Crores Fourty Five Lacs Only].
NOW THIS INDENTURE OF SALE WITNESSES AS FOLLOWS :-
In consideration of Rs.2,45,00,000/- [Rupees Two Crores
Fourty Five Lacs Only], is paid by the purchaser, by Account
Payee Cheques, to the vendor detailed as under :
Sr. No. Date Cheque No. Amount
1 08.09.2015 162838 Rs.30,00,000/-
2 10.09.2015 162841 Rs.30,00,000/-
3 12.10.2015 312735 Rs.20,00,000/-
4 30.01.2016 312740 Rs.80,00,000/-
5 02.03.2016 312741 Rs.85,00,000/-
TOTAL AMOUNT Rs.2,45,00,000/-
In view of this Sale Deed, the purchaser will become
absolute owner and possessor of the said land ..... ..... ..... ..... .......
16 FA-1521-2019.odt
Purchaser shall be entitled to enjoy the Said Land as per
his choice and wish. The Purchaser can mutate his name in the
revenue and other records, only after the realisation of all the
Post Dated cheques and the Vendor have no objection and shall
extend full co-operation for the same.
That to Honour all the Post Dated cheques due date is the
Essence of the above "SALE DEED". The vendee/Purchaser has
to strictly adhere & follow the same. In any case, Both the Post
Dated Cheques for entire balance payable Amount of
Rs.1,65,00,000/- (Rs.One Crore & Sixty Five Lacs only) are to be
Hounoured & paid by the Vendee/Purchaser, to the Vendor /
Seller on its Due Date, i.e. Cheque No.312740 of Rs.80,00,000/-
on 30-01-2016 and another Cheque No.312741 of Rs.85,00,000/-
on 02-03-2016 and the Purchaser is not Authorised to execute
any Sale Deeds of land or Plots with any Third Party before the
realisation of these Post Dated Cheques. In case of any Default
& Failure of the Same, the above said SALE DEED, will be
automatically treated as Cancelled and the Entire amount paid
by the Purchaser / Vendee will be forfeited, without any notice
and the Purchaser / Vendee will not have any Right / Claim over
the same as well as he will not at all, be empowered & will not
have any Right to Claim for any Refund of the same, nor he can
claim any Right over the Property under sale, nor he will be
Empowered and Authorized, to fle any suit against the Seller /
Vendee".
15. Sale is defned under Section 54 of the T.P. Act, which
reads 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.
Sale how made - Such transfer, in the case of tangible
immovable property of the value of one hundered rupees and
upwards, or in the case of a reversion or other intangible thing,
can be made only by a registered instrument."
16. The Plaintiff in his cross-examination admitted that, prior
to the documentation, Defendant made payment of
Rs.80,00,000/- [Rupees Eighty Lakhs] to him. He further
admitted that on the date of execution of sale deed, he delivered
the possession of suit property in favour of the Defendant and
had transferred all the rights of suit property in favour of the
Defendant. There is no dispute on the aspect that, the
17 FA-1521-2019.odt
Defendant had paid part amount towards consideration to the
Plaintiff and for remaining amount of consideration had issued
two post-dated cheques in favour of the Plaintiff. Thus, it is
more than clear that the transaction between the parties was
covered by the defnition of Sale. From the evidence on record
and the contents of sale deed which is not disputed, it becomes
more than clear that the intention of the parties was to transfer
the suit property by way of sale from Plaintiff to Defendant. On
execution of the sale deed, the ownership and title passed on to
the Defendant. The suit property was conveyed to the
Defendant by the sale deed. There is no ambiguity in the sale
deed. The transaction has the trappings of Sections 54 and 8 of
the T.P. Act. Sections 19, 21 and 31 of the T.P. Act pertains to
Vested Interest, Contingent Interest and Condition that transfer
shall cease to have effect in case specifed uncertain event
happens or does not happen. A vested interest was created
forthwith in the Defendant on execution of sale deed. The
transaction do not fall in the category of Contingent Interest
and Conditional Transfer. Thus, the Plaintiff will only be
entitled for the remaining unpaid amount of consideration by
virtue of the provision of Section 55 [4] of the T.P. Act.
17. On Mutation by the Defendant before realization of all the
post-dated cheques; the Plaintiff came with the case that though
there was stipulation in the sale deed not to mutate the name of
Plaintiff in the revenue records before realization of all the post-
dated cheques, mutation was effected. It has come in the cross-
examination of Plaintiff that he frequently used to enter into
the transaction for landed property and knew the purpose of
Form No.4 and at the time of execution of sale deed, he had
executed Form No.4. He admitted that after handing over the
18 FA-1521-2019.odt
Form No.4, revenue authority used to take the entry of
mutation in the name of vendee. He further agreed that despite
the condition in sale deed, he executed Form No.4. The cross-
examination of Defendant show that after ffteen days, his name
was mutated in the revenue records and for that he moved the
application on 23/12/2015. It is the case of Plaintiff that on
01/01/2016, he gave the application to the Talathi requesting
not to mutate the name of Defendant. According to the Plaintiff,
he learnt on 05/02/2016, that the Defendant had mutated his
name in the revenue record. It is not clarifed by the Plaintiff,
by way of pleadings and evidence as to in what manner or
under what circumstance, he got the knowledge of the mutation
entry on 05/02/2016. There is gray area on this aspect. What
is gathered from the evidence on record is that, the Plaintiff got
the knowledge that the Defendant had moved application for
mutation and so he submitted the application dated 01/01/2016
to the Talathi requesting not to mutate the name of the
Defendant.
18. Admittedly, the Plaintiff encashed the frst post-dated
cheque dated 31/01/2016 issued by the Defendant. Even
though, for the sake of argument, the Plaintiff's version that he
got the knowledge on 05/02/2016 that the Defendant mutated
his name is accepted, nothing was done by him and he kept
mum. Only for the frst time, he raised this in the Plaint about
the knowledge on 05/02/2016. Thus, the Plaintiff's version that
only after encashing the frst post-dated cheque, he learnt about
the mutation does not appear to be probable and acceptable. It
is needless to state that the revenue entries and records are for
the fscal purpose. The learned Civil Court has rightly observed
that, mutation of Defendant's name in revenue record was not a
19 FA-1521-2019.odt
breach of material condition of the sale deed and condition of
mutation was not the essence of contract.
19. The other contention of the Plaintiff is that the Defendant
was not authorized to execute any sale deed of suit land with
any third party before realization of the post-dated cheques. On
this aspect, it is nowhere the case of Plaintiff in the Plaint that
the Defendant had plotted the suit land and created third party
interest. What was pleaded is that, the Defendant was trying to
change the nature of the suit property and was trying to create
third party interest. On this aspect, the Plaintiff is heavily
relying upon the admission given by the Defendant in the cross-
examination that he plotted some of the suit property and sold
some of the plots. It is settled position under the law that
admission is only the piece of evidence and can be explained
and it does not conclusively bind a party unless it amounts to
an estoppel. The sale deed was executed on 21/12/2015. The
cross-examination of the Defendant was done on 12/04/2018. It
is not brought on record as to when the suit property was
plotted and sold out. Therefore, the said admission by the
Defendant will not be of any assistance to the Plaintiff as there
is no iota of evidence to show as to when the suit property was
plotted and third party interest was created. Moreover, there is
complete absence of foundational pleadings by the Plaintiff in
the Plaint in that regard.
20. What is seen from the evidence on record, is that before
the due date of the second post-dated cheque, the Defendant
sent the copy of demand draft of remaining consideration on
06/02/2016 to the Plaintiff, which was refused by the Plaintiff.
True it is that, the original demand draft was not sent. However,
20 FA-1521-2019.odt
it is a matter of record that only after the Defendant issued the
legal notice dated 19/04/2016 through Advocate in respect of
depositing second post-dated cheque in the Bank, the Plaintiff
by notice dated 28/04/2016 came up with the case of
cancellation of sale deed on the ground of mutation. It is
evident that substantial amount of consideration was paid by
the Defendant to the Plaintiff and also issued post-dated
cheques which show his bonafdes. Admittedly, the Plaintiff did
not put the last post-dated cheque i.e. dated 02/03/2016, issued
by the Defendant for encashment. Had it been the case that the
Plaintiff deposited the said cheque and there was no realization
of the cheque amount, it would have been different case.
However, it is not so. On this ground also, the case of Plaintiff
fails.
21. We have scrutinized the impugned Judgment and Order of
the learned Civil Court. The learned Civil Court has rightly
framed the issues. The learned Trial Court has considered the
oral as well as documentary evidence available on record and
on appreciation of the same recorded its fndings against the
issues. The fndings are supported with cogent reasons which
are derived from the pleadings and evidence on record. Even,
in the light of the principles laid down in the above referred
Judgments relied by the parties, the Plaintiff is not entitled for
the reliefs claimed in the Suit. No case exists to interfere in the
impugned Judgment and Order. We uphold the Judgment and
Order and proceed to pass the following order :
ORDER
[I] First Appeal is dismissed.
21 FA-1521-2019.odt
[II] The amount of balance consideration deposited by the
Defendant in the Court, be paid to the Plaintiff, with
interest accrued thereon, on his Application.
[NEERAJ P. DHOTE, J.] [R. G. AVACHAT, J.]
Sameer
Signed by: Md. Sameer Q.
Designation: PA To Honourable Judge
Date: 04/09/2024 15:17:17
