DAHIBEN versus ARVINDBHAI KALYANJI BHANUSALI (GAJRA) (D) THR LRS & ORS.

Citation: [2020] 5 S.C.R. 694 · Decided: 09-07-2020 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Dismissed

Cited by 6 judgment(s) · cites 11 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 5 S.C.R.
DAHIBEN
v.
ARVINDBHAI KALYANJI BHANUSALI
(GAJRA) (D) THR LRS & ORS.
(Civil Appeal No. 9519 of 2019)
JULY 09, 2020
[L. NAGESWARA RAO AND INDU MALHOTRA, JJ.]
Code of Civil Procedure, 1908 – Or.VII, r. 11 (a) & (d) –
Rejection of plaint, if suit is barred by Limitation and does not
disclose cause of action – The plaintiffs sold the suit property to
respondent no.1-purchaser vide registered sale deed dated
02.07.2009 – The respondent had issued 36 cheques for
Rs.1,74,02,000/- towards payment of the sale consideration in favour
of the plaintiffs, the details of which were set out in the sale deed
dated 02.07.2009 – The respondent no.1 subsequently sold the suit
property to respondent nos.2 and 3 vide registered sale deed dated
01.04.2013 – In 2014, the plaintiffs filed a suit against the
respondent no.1 and also impleaded respondent nos.2 & 3 as
defendants and sought cancellation of the sale deed dated
02.07.2009 as the sale consideration fixed was not paid in entirety
by respondent no.1 – It was alleged that respondent no.1 had paid
only Rs. 40,000/- through 6 cheques and remaining 30 cheques for
Rs. 1,73,62,000 were ‘bogus’ cheques – Respondent Nos. 2 & 3
filed an application for rejection of plaint u/or.VII,r.11(a) & (d) of
the CPC contending that the suit filed by the plaintiffs was barred
by limitation and no cause of action was disclosed in the plaint –
The Trial Court on perusal of the registered sale deed dated
02.07.2009 noted that the plaintiffs had in fact accepted and
acknowledged the payment of the full sale consideration from
respondent no.1, through cheques which were issued prior to the
execution of the sale deed – The Trial Court held that period of
limitation for filing the suit was 3 years from the date of execution
of the sale deed dated 02.07.2009, however, the suit was filed on
15.12.2014, which was barred by limitation – The High Court
affirmed the findings of the Trial Court and held that the suit was
barred by Limitation – On appeal, held: In the Sale Deed dated
[2020] 5 S.C.R. 694
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02.07.2009, the plaintiffs had expressly and unequivocally
acknowledged that the entire sale consideration was ‘paid’ by
defendant no. 1/respondent no. 1 herein to the plaintiffs – The
conduct of the plaintiffs in not taking recourse to legal action for
over a period of 5 and ½ 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 was an after-thought – The
plaintiffs by clever drafting of the plaint, attempted to make out an
illusory cause of action and bring the suit within the period of
limitation – The plaintiffs deliberately did not mention the date of
the registered sale deed dated 02.07.2009 in the prayer, since it
would have become evident that suit was barred by limitation – The
omission was made to mislead the Court – Thus, plaintiffs failed to
discharge the onus of proof that the suit was filed within the period
of limitation – Besides, in view of the law laid down by the Supreme
Court, even if averments of the plaintiffs are taken to be true that
the entire sale consideration was not 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
– Thus, the plaint was rightly rejected by the Trial Court u/Or. VII,
r.11 CPC.
Dismissing the appeal, the Court
HELD: 1. If the case made out in the Plaint is to be believed,
it would mean that almost 99% of the sale consideration i.e.
Rs.1,73,62,000 allegedly remained unpaid throughout. It is,
however inconceivable that if the payments had remained unpaid,
the Plaintiffs would have remained completely silent for a period
of over 5 and ½ 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. [Para 15.2][712-D-E]
2.1 In Vidyadhar v. Manikrao & Anr. 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,
DAHIBEN v. ARVINDBHAI KALYANJI BHANUSALI
(GAJRA) (D

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