Gujarat High Court
Pravinbhai Thakarsibhai Jikadra vs Laxmiben Rameshbhai Patel on 17 July, 2025
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C/CRA/511/2023 JUDGMENT DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 511 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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PRAVINBHAI THAKARSIBHAI JIKADRA
Versus
LAXMIBEN RAMESHBHAI PATEL & ORS.
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Appearance:
ANURAG V AGRAWAL(9295) for the Applicant(s) No. 1
MR SHRIRAJ D SHAH(10475) for the Opponent(s) No. 3
MS MEENA VYAS(3315) for the Opponent(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 17/07/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Ms.Vyas, learned advocate waives
service of notice of Rule on behalf of the respondent. With the consent of
the learned advocates for the respective parties, the matter is taken up for
final hearing.
2. The present Revision Application has been filed challenging the
order dated 10.07.2023, passed by the Additional Senior Civil Judge,
Ankleshwar below Exh.16 in Special Civil Suit No.10 of 2022 whereby
the application of applicant under the provisions of Order VII Rule 11 of
the Code of Civil Procedure, 1908 ('CPC', for short) to reject the plaint
filed by the defendant has been rejected.
3. The parties are referred as per their original status as that in the
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suit.
FACTS:
3.1 The plaintiff has filed the suit on the ground that though the suit
property has been transferred to defendant no.1 by plaintiff for an amount
of Rs.9,30,000/- , the sale-consideration was Rs.40/- Lakhs and it was
agreed that the defendant shall pay remaining amount of Rs.30,70,000/-
within a period of 30 days and entire period for repayment was stated to
be two months. It has been stated in the plaint that as the Jantri value of
the suit property is Rs.9,30,000/- the said amount is stated in the sale-
deed but actual sale consideration was for Rs.40,00,000/-.
3.2 It has been stated in the plaint that the cheques that were handed
over by the defendant, to the plaintiff for sale consideration have been
dishonoured and, therefore, as the sale consideration was not received by
the plaintiff, the plaintiff filed suit for cancellation of sale-deed dated
24.05.2021 and further sale-deed executed by defendant no.1 in favour of
defendant no.2 dated 09.08.2021. The defendant appeared in the said suit
and filed application under the provisions of Order VII Rule 11 of the
CPC and the said application was rejected. Hence, the present Civil
Revision Application.
SUBMISSIONS OF DEFENDANT - PETITIONER :
4.1 Learned advocate for the defendant has mainly argued that
defendant was always ready and willing to pay the sale consideration of
Rs.9.30 Lakhs and letters to that effect were also written by defendant to
the plaintiff but the plaintiff has filed the suit for cancellation of the sale
deed only on the ground that the sale consideration has not been paid.
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4.2 Learned advocate for the defendant has argued that even if entire
sale consideration was not received by the plaintiff, the plaintiff could not
have filed suit for cancellation of sale-deed and the only remedy that the
the plaintiff could have sought for was recovery of amount i.e. sale
consideration.
4.3 Learned advocate for the defendant has relied upon the judgment
reported in (2020) 7 SCC 366 in the case of Dahiben v. Arvindbhai
Kalyanji Bhanushali and argued that no cause of action arisen for the
plaintiff to file the present suit.
4.4 Learned advocate for the defendant has also argued that though
the plaintiff has stated in the plaint that fraud has been committed on
plaintiff, no particular of the said fraud has been stated in plaint and
therefore also plaint is required to be rejected. With respect to the fact
that total sale consideration was Rs.40/- Lakhs that has been stated in the
plaint, it has been stated that said fact is not true and same is not
supported by the recitals made in the sale-deed and therefore the plaint is
required to be rejected.
SUBMISSIONS OF PLAINTIFF - RESPONDENT :
5. Learned advocate for the plaintiff has mainly argued that by virtue
of Section 54 of the Transfer of Property Act, the sale is not complete,
unless entire sale consideration is paid by the defendant to the plaintiff
and, therefore it has been argued that unless evidence is led with respect
to payment of sale consideration and the fact that whether sale
consideration was Rs.40/- Lakhs the same could not be decided at the
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stage of Order VII Rule 11 of the CPC and, therefore, the trial Court has
rightly rejected the said application.
ANALYSIS :
6.1 Having heard learned advocates for the parties, the following
undisputed facts have emerged as under:
(i) the plaintiff does not deny execution of the registered sale-deed
dated 24.05.2021 (the sale-deed executed by plaintiff in favour
of defendant no.1);
(ii) the only fact that the plaintiff has stated in the plaint is that the
cheques that were handed over to the plaintiff for sale
consideration has been disowned;
(iii) the defendant no.1 has further sold property to defendant no.2;
(iv) bare reading of the said registered sale-deed dated 24.05.2021
demonstrates that the plaintiff admits that he has executed
registered sale-deed and has voluntarily accepted the sale
consideration.
Therefore, while executing the sale-deed, there was no fraud that is
created on the plaintiff. The only fact remains that plaintiff has not
received entire sale consideration and the only dispute the plaintiff raised
is, that, cheques that were handed over to the plaintiff towards sale-
consideration has dishonoured. However, at the same time, defendant has
categorically stated that he was always ready and willing to pay
remaining amount of sale consideration and letters to that effect were also
written by defendant. The Hon'ble Apex Court, in the case of Dahiben v.
Arvindbhai Kalyanji Bhanushali (supra) has in fact held that even after
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entire sale consideration has not been paid to the seller, it cannot be a
ground for cancellation of sale-deed.
6.2 The Plaintiff may have other remedies in law for recovery of
balance consideration but could not seek the relief of cancellation of the
registered Sale deed and therefore, the suit filed by the Plaintiff is
vexatious, meritless, and does not disclose a right to sue much or less a
mix question of law and facts as sought to be canvased before the Hon'ble
court.
6.3 From the undisputed position on record as noted above, it is clear
that the Plaintiff has filed the present suit with the sole case that the
Plaintiff has not been paid the sale consideration for execution of the sale
deed. Therefore, except for the right of an unpaid seller, there is no other
right which has been claimed by the Plaintiff in the present suit. Any
relief sought for possession is only consequential and naturally flowing
from the primary relief of cancellation of the sale deed.
Dahiben v. Arvindbhai Kalyanji Bhanushali, (2020) 7 SCC 366 :
6.4 Hon'ble Supreme Court in the case of Dahiben v. Arvindbhai
Kalyanji Bhanushali (supra), after having gone through the provisions
of section 54 of the Transfer of Property Act, has unequivocally laid
down that an unpaid seller at best, can sue for the remainder
consideration. However, this cannot entitle the said unpaid seller to seek
cancellation of a Registered Sale Deed, which has been executed by the
said seller itself. This is more in view of the fact that the definition of sale
under section 54 of the Transfer of Property Act includes a sale which is
"paid, promised, partly paid, or partly promised."
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6.5 Therefore, when the law does not permit challenge of a sale deed
on the ground that a seller has not been paid sale consideration, there can
be no cause of action for challenging the sale deed on the said ground. In
other words, assuming everything that is said in the Plaint to be true, even
then, the Plaintiff cannot have a right in the law to sue the Defendant
seeking cancellation of the sale deed. Hence, the Plaintiff cannot be said
to have any cause of action for filing the present suit.
6.6 The Plaintiff may have other remedies in law for recovery of the
balance consideration. However, it cannot sue the Defendant for
cancellation of the sale deed, which has been admittedly executed by the
Plaintiff itself. Relevant portion of Dahiben v. Arvindbhai Kalyanji
Bhanushali (supra) is reproduced hereinunder:
"29.9 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 7 Rule 11(a)." (emphasis supplied).
6.7 This finding is further fortified from the recitals of the Registered
Sale Deed, which has been entered into between the parties. A bare
perusal of the said sale deed would show that the Plaintiff has in fact
acknowledged in the sale deed that the sale consideration has been
received. Having said so, the Plaintiff cannot now resile in the Plaint to
say or otherwise, without any documentary proof thereof. The relevant
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clause of the said sale-deed reads as under:
"As per the details above, we, the Second Party, have sold
the agricultural land described at the end of this deed to you, the
First Party, for a valuable consideration of Rs. 9,30,000/- (Rupees
Nine Lakh Thirty Thousand Only). We have received the entire
amount of the said sale consideration, paid as per the details below:
Details of Consideration Received
Sr. Date Amount Cheque Particulars
No No.
1. -- 10,000/- -- Cash
2. -- 10,000/- -- Cash
3. 19/05/2021 56,875/- 000030 Prime Co. Op. Bank Ltd
4. 19/05/2021 56,875/- 000031 Prime Co. Op. Bank Ltd
5. 19/05/2021 56,875/- 000032 Prime Co. Op. Bank Ltd
6. 19/05/2021 56,875/- 000033 Prime Co. Op. Bank Ltd
7. 19/05/2021 56,875/- 000034 Prime Co. Op. Bank Ltd
8. 19/05/2021 56,875/- 000035 Prime Co. Op. Bank Ltd
9. 19/05/2021 56,875/- 000036 Prime Co. Op. Bank Ltd
10. 19/05/2021 56,875/- 000037 Prime Co. Op. Bank Ltd
11. 19/05/2021 56,875/- 000038 Prime Co. Op. Bank Ltd
12. 19/05/2021 56,875/- 000039 Prime Co. Op. Bank Ltd
13. 19/05/2021 56,875/- 000040 Prime Co. Op. Bank Ltd
14. 19/05/2021 56,875/- 000041 Prime Co. Op. Bank Ltd
15. 19/05/2021 56,875/- 000042 Prime Co. Op. Bank Ltd
16. 19/05/2021 56,875/- 000043 Prime Co. Op. Bank Ltd
17. 19/05/2021 56,875/- 000044 Prime Co. Op. Bank Ltd
18. 19/05/2021 56,875/- 000045 Prime Co. Op. Bank Ltd
Rs. 9,30,000 (Rupees Nine Lakh Thirty Thousand
Only)
Therefore, we, the Second Party, acknowledge that the full
sale consideration, as detailed above, has been received from you,
the First Party. We hereby confirm due receipt of the same.
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Consequently, in the future, no dispute from our side regarding less
payment or non-payment of the consideration, or any other similar
claim, will be entertained. Any such claim, if made, shall be
deemed null and void."
6.8 This view of the sole right of an unpaid seller has been laid down
by several courts of this country, including this Court.
Key Pee Buildtech Pvt. Ltd. vs. Shahjahan Begum
MANU/RH/0432/2015 :
6.9 In Key Pee Buildtech Pvt. Ltd. vs. Shahjahan Begum (supra), the
Rajasthan High Court held as follows:
"14. Looked from another angle, this Court is of the
further view that the plaint also does not disclose
cause of action and is liable to be rejected on this
count also. It is settled law that where a document is
sued upon and its terms are not set out in the plaint
but referred to in the plaint, the said document gets
incorporated by reference in the plaint (Church of
Christ Charitable Trust and Educational Charitable
Society v. Ponniamman Educational Trust:
MANU/SC/0515/2012 : 2012(8) SCC 706). The sale
deed executed by the plaintiff does not incorporate
any recital that title shall not vest in the buyer until
and unless sale price is paid. In view of Section 54 of
the Transfer of Property Act, coupled with the fact of
absence of any such recital, as mentioned
hereinabove, the title passed on to the buyer on the
execution and registration of the sale deed. In such
fact and situation, the plaintiff has no legal right to
get the sale deed annulled, even if it is presumed
that the contracted sale price was not paid to her.
The suit, as instituted is not for recovery of any
unpaid sale price but for annulment of a registered
sale deed on the averment that the agreed sale price
was not paid. Even if the plaint averments are taken
on its face value and presumed to be true and correct,
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the plaintiff is not vested with any legal right to claim
cancellation of the sale deed. The term "cause of
action" not only incorporates infringement of legal
right but the legal right itself. Thus, the plaintiff being
devoid of any legal right to claim annulment of sale
deed and on the basis of such plaint averments, it can
safely be held that the plaint does not disclose any
cause of action." (emphasis supplied).
Bhimabhai Mansibhai Karia v. General Manager, RSPL Ltd., 2021 (0)
AIJEL HC 245699
6.10 Hon'ble Division Bench of this Court in the case of Bhimabhai
Mansibhai Karia v. General Manager, RSPL Ltd. (supra) has held as
follows:
"The suit in substance is for recovery of the so-called
unpaid sale consideration. Let us proceed on the
footing for the time being that the plaintiffs have to
recover some unpaid sale consideration. The
Supreme Court, in the case of Dahiben (supra), has
categorically held that non- payment of a part of the
sale consideration does not make the registered sale-
deed 'void' nor does it constitute a valid ground for
its cancellation. The Supreme Court held thus:
...
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."
Harish Purshottam Chandwani v. Janak Chandiram Sukhwani, Second
Appeal 6 of 2025
6.11 Even this Court in the case of Harish Purshottam Chandwani v.
Janak Chandiram Sukhwani (supra) has held as follows:
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"The law is well settled that the plaintiff cannot claim
that even if the entire sale consideration has not in
fact been paid, the same could not be a ground for
cancellation of the sale deed. The law is also very
clear that the definition of sale indicates that there
must be a transfer of ownership from one person to
another, which includes transfer of all rights and
interest in the property which was possessed by the
transferer to the transferee and that the transferer
cannot retain any part of interest or right in the
property and the definition of sale as per provisions
of Section 54 of the Transfer of Property Act, 1882
indicates that the transfer of the ownership has to be
made for a price paid or premised or part paid and
part promised, therefore the price thus constitutes an
essential ingredient of transaction of sale and
therefore the actual payment of the whole of the price
at the time of execution of sale deed is not a sine qua
non for completion of sale. In the present case, the
sale consideration as mentioned in the sale deed has
been stated to have been received by the Plaintiff and
in the sale deed itself the plaintiff has given
acknowledgment of the receipt of the said amount but
even otherwise, even if the whole of the price is not
paid but the sale deed is executed, the sale would be
complete and the title would pass on the defendant
under the transaction, and even if the version of the
plaintiff is to believed, the non-payment of a part of
the sale price would not affect the validity of the sale
as the title in the property having already been
passed and even if the balance sale consideration is
not paid, the said sale deed could not be invalidated
on this ground. In order to constitute a sale the
plaintiff must intent to transfer the ownership of the
property on the agreement to pay the price either in
the present time or in future and from the recital of
the sale deed, it is very clear that the plaintiff has
transferred all his right title interest in the suite
property by executing Registered Sale Deed."
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6.12 Therefore, the law is well settled that the Plaintiff cannot challenge
a sale deed on the ground that it has not been paid sale consideration for
which transaction a Registered Sale Deed has already been entered into.
In the present case also, the Plaintiff has not averred in the sale deed that
transfer of title upon the Defendant would be contingent upon payment of
the sale consideration. In such a case, even if the entire consideration is
not paid, the Plaintiff cannot challenge the sale deed on this count.
6.13 Moreover, recitals of the sale-deed does not state that the sale-deed
is subject to receipts of Rs.9,30,000/-. Hence, there was no cause of
action in the present case for the Plaintiff to sue the Defendant seeking
cancellation of the sale deed, which has been executed by the Plaintiff
itself on the ground of non-payment of sale consideration.
CONCLUSION:
7. Consequently, the present Plaint deserves to be rejected under
Order VII Rule 11(d) of CPC as being barred by Law. Accordingly, the
Plaint is hereby rejected.
8. Resultantly, the present Civil revision Application accordingly
stands allowed. Rule is made absolute.
Sd/-
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
