Rajasthan High Court

M/S Shri Govind Real Infra India ... vs Shri Govind Town Planers Pvt. Ltd on 21 November, 2022

Bench: Birendra Kumar

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         S.B. Civil Miscellaneous Appeal No. 4925/2018

M/s Shri Govind Real Infra India Pvt. Ltd., Having Its Office At
421, Geetanjali Tower, Ajmer Road, Jaipur Through Its Director
Smt Suman Gurjar W/o Shri Shivpratap Harshana, Resident Of
8-A, Pancholi Vihar, New Sanganer Road, Shyam Nagar, District
Jaipur At Present Authorised Signatory Smt. Suman Gurjar
                                                                   ----Appellant
                                   Versus
1.     Shri Govind Town Planers Pvt. Ltd., Having Its Office At
       121, Geetanjali Tower, Ajmer Road, Jaipur Through Its
       Directors
2.     Pankaj Sharma S/o Brij Gopal Sharma, Resident Of 78,
       Gf, Ramprasth Green, Sector-7, Vaishali, Gaziabad, Uttar
       Pradesh
3.     Amit Dhingra S/o M.l. Dhingra, Resident Of 2-A/63, Geeta
       Colony, Delhi-31
4.     Lokesh Vasan S/o M.l. Vasan, Resident Of 35, Pandit Park,
       Krishan Nagar, Delhi.(Deleted On 07.03.2017)
5.     Anurag Upadhyaya S/o B.g. Upadhyaya, Resident Of
       Ground Floor, Plot No,78, Sector-7, Vaishali, Gaziabad
6.     Vinod Mehra S/o Mangat Ram, Resident Of 7/83, Geeta
       Colony, Delhi-31 (Deceased - Deleted On 11.07.2018)
7.     Shambhu Dayal Agarwal S/o Gauri Shankar Agarwal,
       Resident Of Ekta Lodge, New Panchayati Dharmshala,
       Station Road, Jaipur, Rajasthan
8.     Shiv Pratap Harshana S/o C.l. Harshana, Resident Of 8-A-
       Pancholi Vihar, New Sanganer Road, Shyam Nagar, Jaipur
       9. Sandeep Sharma son of Buddhi Prakash Sharma, R/o
       A-A-5 Anita Colony, Bajaj Nagar, Jaipur
                                                                ----Respondents

For Appellant(s)          :    Ms. Suruchi Kasliwal
For Respondent(s)         :    Mr. R.K. Agarwal Sr. Adv with
                               Mr. Adhiraj Modi
                               Mr. Gaurav Sharma
                               Mr. Ankit Sharma


          HON'BLE MR. JUSTICE BIRENDRA KUMAR


                                          (2 of 7)                [CMA-4925/2018]

                                     Order
21/11/2022

1. The plaintiff-appellant is aggrieved by the order of refusal of

prayer for ad-interim injunction passed in Civil Suit No. 15/2006

on 04.09.2018.

2. The plaintiff M/s Shri Govind Real Infra India Pvt. Ltd through

its Director Smt. Suman Gurjar brought civil suit No 15/06 for

cancellation of sale deed dated 17.05.2013 and for declaration

that the said sale deed executed by plaintiff company in favour of

defendant No. 1 Shri Govind Town Planers Pvt. Ltd is null and void

having no effect due to want of transfer of consideration money.

Plaintiff further sought for declaration that the sale deed dated

19.10.2015 executed by defendant No. 1 in respect of some of the

plots which were subject matter of registered sale deed dated

17.05.2013 in favour of some others as null and void, without

jurisdiction and the same also be cancelled. Next prayer was for

recovery of possession and permanent injunction.

3. It is worth to mention that Mr. Shiv Pratap Harshana

defendant No. 8 was the Director of plaintiff company who had

executed the registered sale deed on behalf of the company and

Smt. Suman Gurjar another Director of the plaintiff company who

is wife of Mr. Shiv Pratap Harshana has filed the suit aforesaid. It

is also worth to be noted that the transaction of sale deed dated

19.10.2015 executed by defendant No. 1, the purchaser are not

party to the suit.

4. Ms. Suruchi Kasliwal learned counsel for the appellant

contends that the plaintiff specifically pleaded in the plaint that

sale deed dated 17.05.2013 was created by playing fraud as

consideration money disclosed to be paid through cheques could

not be transferred to the bank account of the appellant company

(3 of 7) [CMA-4925/2018]

rather it was kept pending to be presented in the bank till expiry

of the validity time of cheques and there was interpolation made

in the cheques in the year portion, making 2013 as 2015. Learned

counsel contends that in fact, the cheques dated 16.05.2013 were

re-validated on 16.05.2015 and before its presentation, the

respondents had already closed the bank account on 30.09.2013

itself. Hence, on presentation of the cheques on 30.05.2015 the

same were dishonored. Learned counsel contends that in the

event of non-payment of consideration money, the plaintiff

appellant would have charge on the property which was subject

matter of sale deed in view of the provisions of Section 55 (4) (b)

and 55 (5) (b) of the Transfer of Property Act. In the

circumstance, it would be just and proper to restrain the

respondents from transferring the said property to anyone else, till

adjudication of the suit.

5. Mr. R.K. Agarwal, Sr. counsel appearing for the respondents

contends that the transferor of plaintiff company through

registered sale deed dated 17.05.2013 was none else than the

husband of Smt. Suman Gurjar who has filed the suit on behalf of

the same company. Learned senior counsel submits that recitals in

the sale deed would clearly depict that the entire consideration

money, i.e. one crore was paid through four cheques dated

16.05.2013 and remaining two lakhs was paid through cash on

the date of execution of the sale deed, it is recited specifically that

from the date of execution of the sale deed, title would pass to

defendant No. 1 and possession was also handed over to

defendant No. 1 in respect of the said property. Learned senior

counsel next contends that there is no reasonable justification to

not present the cheques soon after its receipt and keep it to expire

(4 of 7) [CMA-4925/2018]

and get it validated by making interpolation in the year of

issuance and thereafter presenting the same to the bank after

expiry of two years. Learned counsel contends that entire exercise

of interpolation was done with intent to avoid the statutory bar to

bring a suit for recovery of consideration money. Learned counsel

has referred para-3 of the written statement filed in the suit which

is being reproduced below:-

"That without prejudice to defence otherwise of defendants, it is submitted that as per contents of plaint and documents annexed therewith the cheques are ex-facie vitiated by illegal and unauthorised material alteration countersigned by Directors of plaintiff company while the instrument remained in possession of plaintiff company and apparently after two years of purported date of issue i.e. 16.05.2013. It is for this reason that plaintiff company deliberately avoided suit for recovery which ought to have been remedy as per law if at all plaintiff company was aggrieved by dishonor of said cheques. It is pertinent to mention that no notice of dishonor or demand for payment was ever sent by plaintiff company."

6. In the interim injunction matter, the plaintiff appellant filed a

rejoinder, to the reply of the defendant respondent, on

08.08.2017. In para 3, the plaintiff appellant stated that in fact,

after execution of the sale deed, there was cordial relationship

with the Directors of the defendant No.1 company and financial

condition of defendant No. 1 was not good therefore soon after

execution of sale deed it was decided between the parties to the

sale that let the land under transaction be mutated in the name of

defendant company and the defendant would get the nature of

land converted from agricultural use to residential and commercial

use. Thereafter, the defendant would advertise for sale of the land

and for completing this exercise atleast a period of two years was

required. Therefore, the Directors of defendant No. 1 changed the

(5 of 7) [CMA-4925/2018]

date of issuance of cheques and handed over to the plaintiff, since

husband of the plaintiff namely Shiv Pratap Harshana was also

there as one of the Directors of defendant No. 1 company, there

was no reason to doubt on the action/ inaction of defendant No. 1.

The aforesaid admission of the plaintiff appellant makes it

abundantly clear that it was conscious of the circumstances under

which cheque amount of consideration money of the sale deed

was not given effect to and the sale deed was given effect to.

Therefore atleast for the purpose of consideration of the prayer for

ad-interim injunction, it cannot be argued that fraud was played in

the execution of sale deed in as much as consideration money was

not fully paid.

7. Learned counsel for the appellant has placed reliance on the

judgment of Hon'ble Supreme Court in Narendra Kumar Mittal and

Others Vs. Nupour Housing Development Private Limited reported

in 2020 (20) SCC 158. Question involved therein was whether the

Revenue Court has jurisdiction of granting relief of cancellation of

sale deed on the ground of fraud or misrepresentation. The

Hon'ble Supreme Court said that this jurisdiction is with the Civil

Court. Learned counsel next relied on the judgment of Hon'ble

Supreme Court in Kewal Krishan vs. Rajesh Kumar and Others

reported in 2021 SCC online SC 1097 for her submission that a

suit for cancellation of sale deed is maintainable where

consideration money did not pass. In that case, the seller had

created two sale deeds, one in favour of his minor son and

another in the name of his wife. Only token consideration money

was mentioned in the sale deed. The court held that sale without

consideration could have been cancelled. In the case of Hasti

Vement Pvt. Ltd Vs. Sandeep Charan reported in 2018 (1) RLW

(6 of 7) [CMA-4925/2018]

826, a Bench of this court was considering the scope of

Rajastshan Tenancy Act and Order VII Rule 11 CPC.

8. In Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Rajra)

reported in 2020 (7) SCC 366 the Hon'ble Supreme Court

considered the nature of sale transaction as defined in Section 54

of Transfer of Property Act and stated as follows:-

"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.

In Vidyadhar v. Manikrao & Anr. (1999) 3 SCC 573 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.

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 VII Rule 11 (a)."

9. On careful consideration of material available on the record:-

(a) it is evident that the operation of the sale deed dated

(7 of 7) [CMA-4925/2018]

17.05.2013 was not in any way restricted to the payment of entire

consideration money rather, the sale deed speaks about payment

of entire consideration money at the time of execution of the sale

deed and title and possession passed to the purchaser soon on

registration of the sale deed.

(b) all the four cheques mentioned in the sale deed were not

produced before the bank for being honored for two years, the

explanation for non-presentation is cozy relations amongst the

Directors of the two companies which included husband of Director