Kanubhai Mangaldas Prajapati vs Thakor Chanchiben Lalluji
2021 Latest Caselaw 865 Guj

         C/FA/2906/2019                                     ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/FIRST APPEAL NO. 2906 of 2019
                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                 In R/FIRST APPEAL NO. 2906 of 2019

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                   KANUBHAI MANGALDAS PRAJAPATI
                               Versus
                     THAKOR CHANCHIBEN LALLUJI
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Appearance:
MR YV VAGHELA(2450) for the Appellant(s) No. 1
JIGNESHKUMAR M NAYAK(8558) for the Defendant(s) No. 1,3,4,5,6
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 8,9
MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 8,9
NOTICE SERVED(4) for the Defendant(s) No. 7
UNSERVED EXPIRED (N)(9) for the Defendant(s) No. 2
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 CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
        and
        HONOURABLE MR. JUSTICE A.S. SUPEHIA

                          Date : 20/01/2021

                       ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

At the outset, learned advocate for the appellant Mr.Y.V. Vaghela seeks to amend the prayers in the captioned Civil Application by transplanting and incorporating prayer made in paragraph 11(C) which was part of Civil Application (For Amendment) No.1 of 2020 and which was ordered to be considered by the Court with the captioned Civil Application No.1 of 2019 as per order dated 18th August, 2020 passed in Civil Application No.1 of 2020.

1.1 The said prayer 11(C) reads as under.

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Your Lordships may be pleased to direct the parties to maintain status quo with respect to the land in question of survey No.1124 admeasuring 0-40-47 sq. mtrs of land of mouje:-Kalol, Tal:-Kalol, Dist: Gandhinagar till and pending the final disposal of the First Appeal.

1.2 The amendment as above in the captioned Civil Application No.1 of 2019 is permitted. The same shall be carried out forthwith.

2. Heard learned advocate for the appellant and learned advocate Mr.Dakshesh Mehta for defendant Nos.8 and 9 with regard to the admission of the appeal as well as the grant of interim relief or otherwise.

3. The First Appeal is directed against judgment and decree dated 28th November, 2018 passed by learned Principal Senior Civil Judge, Kalol in Special Civil Suit No.82 of 2014. Thereby the court below has declared sale deed dated 30th September, 2014 executed by the plaintiffs in favour of defendant No.1 in respect of the suit land to be null and void. The court also set aside sale deed dated 20th July, 2015 which was in respect of part of the total area of the suit land executed by defendant No.1 in favour of defendant No.2. The cancellation of the sale deeds are rested on the ground that the same were without consideration.

3.1 It appears from the facts recorded in the impugned judgment that out of the total sale consideration, the defendant No.1 had passed cheques for Rs.54,00,000/-, out of which the cheques to the

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extent of half of the amount appears to have been bounced. It is not in dispute that the plaintiffs did not deposit the cheques of the remainder Rs.27,00,000/-.

4. About the payment of consideration, it is the case of the defendant No.1 that he paid Rs.65,00,000/- in cash. Thereby it was submitted hat the sale deed was not devoid of passing of the consideration. It was also submitted that in the written statement, a clear and specific averment was made that the defendant was ready and willing to pay the balance of the consideration amount.

5. For assailing the impugned judgment and decree and seeking admission of the appeal, decision of Dahiben v. Arvindbhai Kalyanji Bhanushali [(2020) 7 SCC 366] was relied on to press into service the proposition of law laid down therein that only payment of entire sale price at the time of execution of sale deed is not essential condition for completion of sale. It is held that sale deed can be registered even upon part payment of sale price whereupon the title would pass to the transferee and that non-payment of the remaining part of the sale price would not invalidate the sale. The Supreme Court considered the expression "price paid or promised or part paid and part promised" in the said judgment.

5.1 While the aforesaid proposition of law would hold the field, it is equally trite that whether the

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sale deeds in question, which have been set aside by the trial court, were supported by consideration or not, is a question to be adjudicated upon examination of the evidence on record. It is a question of fact and law both, for which conclusion has to be arrived at after visiting with the facts in detail.

5.2 In the aforesaid view, the Court is of the view that appeal deserves to be admitted. Appeal is admitted.

6. As far as prayer for interim relief is concerned, the newly incorporated prayer as above was pressed into service. Learned advocate for the appellant submitted about the subsequent developments that the subject matter land changed hands and came to be sold in favour of defendant Nos.8 and 9 herein. The aforementioned Civil Application No.1 of 2020 was filed for joining defendant Nos.8 and 9 as party in the present appeal proceedings wherein the aforesaid prayer 11(C) was also made which is kept open, to be considered as per above mentioned order while adjudicating the present Civil Application No.1 of 2019.

6.1 Since the appeal is admitted, the subject matter property has to be preserved in a status. If further transactions of sale take place or encumbrance is created in respect of the suit property, there would be multiplicity of proceedings. Such eventualities have to be avoided till the final decision is arrived in the First Appeal and the

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rights of the parties are crystalised.

7. In that view, in order to preserve the status of the suit property and to ensure that further multiplicity of proceeding does not arise, we direct the parties of the proceedings of the First Appeal to maintain status quo with regard to the land in question bearing Survey No.1124 admeasuring about 0-40-47 sq. mtrs. situated at Kalol, Taluka Kalol, District Gandhinagar till final disposal of the First Appeal.

7.1 At the same time, in order to balance the rights of the parties during the pendency of the First Appeal, we consider it proper to put the appellant also to the appropriate condition. The appellant shall deposit Rs.27,00,000/- which is equivalent to the amount of bounced cheques, with the Registry of this Court, within eight weeks from today.

7.2 Upon deposit of the amount within the stipulated time as above, Registry shall invest the same in a cumulative fixed deposit in any nationalized bank for initial period of one year, renewable from time-to-time, to be subject to further and final orders which may be passed by the Court.

8. It is, however, clarified that if the amount as directed is not deposited and appellant fails to satisfy the said condition, the interim relief granted earlier shall stands automatically vacated.

        C/FA/2906/2019                                      ORDER



9.        Civil         Application         is   allowed         in        the
aforesaid terms.
                                                   (N.V.ANJARIA, J)


                                                 (A. S. SUPEHIA, J)
ANUP