CR No.3091 of 2007 1 In the High Court of Punjab and Haryana, Chandigarh. CR No.3091 of 2007 (O&M) and CR Nos. 3113, 3447 & 3448 of 2007 Date of Decision: 01.10.2010 Surinder Pal ....Petitioner Versus M/s. Rainbow Promoters Pvt. Ltd. ....Respondents. Coram:- Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. Arun Jain, Sr. Advocate with Mr. Vishal Gupta and Mr. Rajbir Singh, Advocates for the petitioner. Mr. Ashok Aggarwal, Sr. Advocate with Mr. Hemant Saini and Mr. Alok Jain, Advocates for the respondent. ... Alok Singh, J. In all the four petitions, identical question is involved, hence with the consent of learned counsel for the parties, all the four petitions are being heard and disposed of by this common order. For the sake of brevity, with the consent of learned counsel for the parties, CR No.3091 of 2007 is being taken as a leading case. Present petition is filed challenging the order dated 12.5.2007 passed by the Additional Civil Judge, Senior Division, Gurgaon, thereby directing the plaintiff to pay ad valorem Court fee on the sale consideration shown in the sale deed in question. Brief facts of the present case, inter-alia, are that plaintiff - CR No.3091 of 2007 2 petitioner herein has filed suit seeking declaration to the effect that sale- deed bearing registration No.6680, Additional Book No.1 Volume No.8482 executed between the plaintiff and defendant duly registered before the office of the Sub Registrar is null and void as post-dated cheques dated 23.7.2006 and 10.8.06 paid as part of the sale consideration were returned uncashed/dishonoured. It is contended in the plaint that defendant has agreed to purchase the property mentioned in the sale deed for Rs.2,28,12,500/-. Plaintiff has executed a sale deed dated 22.6.2006 in favour of the defendant for a total consideration of Rs.2,28,12,500/-. In consideration of the sale deed towards the price money of the land sold, defendant has handed over three cheques to the plaintiff, details of which are as under: - “Sr No. Amount Cheque No. Date Drawn on a. Rs.91,25,000 925001 23.06.2006 Citibank NA b. Rs.75,28,125 925004 23.07.2006 Citibank NA c. Rs.61,59,375 925003 10.08.2006 Citibank NA” One cheque dated 23.6.2006 for Rs.91,25,000/- was cleared on presentation and other two cheques for the sum of Rs.75,28,125/- and Rs.61,59,375/- were returned uncashed for want of sufficient funds. It has further been contended that the plaintiff has issued notice to the defendant for encashment of the cheques, however, defendant replied that since plaintiff had not paid the amount of the land to the original farmers, hence, cheques were not cleared. It is further contended by the plaintiff that since total consideration has not been paid, hence sale deed is null and void, therefore, the same may be declared null and void as two cheques dated 23.7.2006 and 10.8.2006 were uncashed. CR No.3091 of 2007 3 Defendant moved an application under Order 7 Rule 11 CPC before the trial Court saying that in fact possession was delivered to the defendant pursuant to the sale deed and relief sought in the plaint is not merely a declaration but it amounts to cancellation of the sale deed and the plaint also contains hidden relief of possession. Prayer was made to the trial Court that the plaintiff be directed to pay ad valorem Court fee on the sale consideration shown in the sale deed, failing which the plaint may be rejected. A reply was filed by the plaintiff to the application filed by the defendant stating that plaintiff is already in possession and has not parted with possession. It has further been contended by the plaintiff that sincefull consideration has not been paid, hence, sale deed is void, hence suit simpliciter for declaration is maintainable, hence plaintiff cannot be asked to pay ad valorem Court fee on the market value of the land or sale consideration mentioned in the sale deed. The trial Court vide impugned order dated 12.5.2007 has observed that Court is not prevented from looking at the substance of the relief claimed. It has further been observed by the trial Court that in the present case since the plaintiff is party to the sale-deed and also received part of the sale consideration of Rs.91,25,000/- hence, he is required to pay ad valorem Court fee. Feeling aggrieved from the order passed by the trial Court, plaintiff has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India. I have heard learned counsel for the parties and perused the record. Mr. Arun Jain, Senior Advocate assisted by Mr. Vishal Gupta CR No.3091 of 2007 4 and Mr. Rajbir Singh, Advocates, vehemently argued that for a valid contract, sale consideration must be passed and if sale consideration is not passed, then contract/sale would be void in view of Section 25 of the Indian Contract act. He has placed reliance on the judgement of the Bombay High Court in the matter of New India Assurance Co. Ltd. Vs. Sau Anjanabai Parashram Jadhav and others, AIR 2006 (NOC) 343 (Bombay), judgement of the Single Judge of the Rajasthan High Court reported in the matter of Prahlad and others Vs. Laddevi and others, reported in AIR 2007 Raj.166 and on the judgement of the learned Single Judge of this Court in the matter of Sheo Diyal Vs. Om Parkash alia Dhualia, reported in 1992 PLJ 249. Mr. Jain further argued that since sale-deed is void for want of full consideration, hence there is no need to seek relief for cancellation. Mr. Jain further contended that plaintiff has stated in the plaint that he is in possession. The issue whether plaintiff is in possession or not shall be decided in a suit. However, at this stage, contents of the plaint should be taken into consideration for the purposes of deciding the issue of ad valorem Court fee. According to him, when plaintiff is seeking simpliciter declaration, he is not supposed to pay ad valorem Court fee for the sale consideration in view of the judgement of the Apex Court in the matter of Suhrid Singh Vs. Randhir Singh and others, reported in 2010(2) RCR (Civil) 564. Per contra, Mr. Ashok Aggarwal, Senior Advocate assisted by Mr. Hemant Saini and Mr. Alok Jain, Advocates, vehemently argued that as per the dictum of the Apex Court the case of Kaliaperumal Vs. Rajagopal, reported in 2009 (4) SCC 193 and in the matter of Vidhyadhar Vs. Mankikrao and another, reported in 1999(3) SCC 573, sale deed shall not be CR No.3091 of 2007 5 void even if the sale price or part thereof is not paid. He further argued that if sale deed is not void, then simpliciter suit for declaration would not lie and plaintiff in the garb of the declaration is seeking relief for cancellation of the sale deed saying that fraud has been played on the plaintiff by non- payment of the part of sale consideration and the cheques were issued to the plaintiff on the false promise, which were dishonoured. He further contends that if hidden actual relief is a cancellation, then plaintiff has to pay ad valorem Court fee, which is required to be paid for the cancellation of the deed. He further placed reliance on the judgement of the Apex Court in the matter of Suhrid Singh (Supra). In the humble opinion of this Court, of course question of payment of Court fee ordinarily shall be decided looking into the contents of the plaint and relief sought, however, a litigant cannot be permitted to mould the relief to save Court fee. Real intention of the plaintiff and real relief hidden in the relief sought is to be found out from the contests of the plaint to decide the question of Court fee. In the opinion of this Court, if executant of a deed wants it to be annulled, he has to seek cancellation of the deed. However, if the deed is void ab initio, then suit simpliciter for declaration to remove the cloud of title would be maintainable. Full Bench of this Court in the matter of Niranjan Kaur Vs. Nirbigan Kaur, reported in 1982 (84) PLR 127 has held as under:- “It is well settled that the Court in deciding the question of Court fee should look into the allegation made in the plaint to find out what is the substantive relief that is asked for. Mere Mere astuteness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the CR No.3091 of 2007 6 relief asked for. Thus in each case, the Court has to find out the real relief claimed by the plaintiff in the suit. Where the main relief is that of the cancellation of the deed, and the declaration if any, is only a surplusage, the case would not be covered under Section 7(iv)(c) of the Act. Because in a suit under that clause, the main relief is that of a declaration and the consequential relief is just ancillary.” In the plaint, plaintiff has stated that he has executed the sale deed in favour of the defendant on 22.6.2006 for the consideration of Rs.2,28,12,500/- and has received three cheques as mentioned in paragraph 3 of the plaint and as observed hereinabove while giving the facts of the case. From the perusal of the plaint, this Court is of the view that the plaintiff has filed suit to annul the sale deed on the ground that the defendant has not paid entire sale consideration and has cheated the plaintiff by not paying entire consideration. Copy of the sale deed is also placed on record and there is a recital in the sale deed in paragraph 6(e), which reads as under: - “That this Sale Deed is executed in all its entirety and the vendors have received all and full consideration of the said land from the vendee and further the vendors admit and confirm the receipt of consideration and that the vendors have given the actual, vacant , peaceful and physical possession of the said land to the vendee as aforesaid and nothing is left due and payable.” From the perusal of recital made in the sale deed as reproduced CR No.3091 of 2007 7 hereinabove, I have no doubt in my mind that in fact sale deed was executed having received cheques towards the sale price and sale transaction was complete. The sale deed does not contain any recital that in the event of dishonour of the cheques, sale-deed shall stand revoked/cancelled/ rescinded automatically. In the opinion of this Court, if sale-deed does not contain any recital to the effect that in the event of non-payment of the sale consideration, which is promised to be paid in future or in the event of dishonour of the post dated cheques, sale-deed shall stand revoked/cancelled/rescinded, sale transaction shall be deemed complete and sale deed shall not be void. I find support from the judgement of the Apex Court in the matter of Kaliaperumal (supra) and Vidhyadhar (supra). In the matter of Kaliaperumal (supra), the Apex Court in paragraph 8 has observed as under: - “8. Sale is defined as being a transfer of ownership for a price. In a sale there is an absolute transfer of all rights in the properties sold. No rights are left in the transferor. The price is fixed by the contract antecedent to the conveyance. Price is the essence of a contract of sale. There is only one mode of transfer by sale in regard to immovable property of the value of Rs.100/- or more and that is by a registered instrument. It is now well settled that payment of entire price is not a condition precedent for completion of the sale by passing of title, as Section 54 of Transfer of Property Act, 1882 (`Act' for short) defines `sale' as a transfer of ownership in exchange for a price paid or promised or part paid and part promised. If the intention of parties was that title should pass on execution and CR No.3091 of 2007 8 registration, title would pass to the purchaser even if the sale price or part thereof is not paid. In the event of non- payment of price (or balance price as the case may be) thereafter, the remedy of the vendor is only to sue for the balance price. He cannot avoid the sale. He is, however, entitled to a charge upon the property for the unpaid part of the sale price where the ownership of the property has passed to the buyer before payment of the entire price, under Section 55(4)(b) of the Act. 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. 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.” CR No.3091 of 2007 9 The Apex Court in the matter of Vidhyadhar (supra) in paragraph 36 has observed as under : - “36. The definition indicates that in order to constitute a sale, there must be a transfer of ownership from one person to another, i.e., transfer of all rights and interests in the properties which are possessed by that person are transferred by him to another person. The transferor cannot retain any part of his interest or right in that property or else it would not be a sale. The definition further says that the transfer of ownership has to be for a "price paid or promised or part-paid and part-promised". Price thus constitutes an essential ingredient of the transaction of sale. The words "price paid or promised or part-paid and part-promised" indicate that actual payment of whole of the price at the time of the execution of sale deed is not sine qua non to the completion of the sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the value of more than Rs. 100/-, the sale would be complete.” Now question comes if sale is final and complete, as to whether any declaration can be sought merely because part of the sale consideration is not paid ? In the opinion of this Court, if sale is complete and vendee by playing fraud or with intent to cheat the plaintiff – vendor, has handed over the cheques towards sale consideration with intention not to get them encashed in future, then plaintiff has to get sale deed annulled on the ground of fraud and misrepresentation and sale deed shall not be void. However, if sale deed contains the recital as observed hereinbefore, then sale would be CR No.3091 of 2007 10 void in terms of the recital in the sale deed, hence suit simpliciter for declaration would lie and in that event, plaintiff would not be required to pay ad valorem Court fee. In the opinion of this Court, present case falls in the first category. Hence, in the opinion of this Court, in the present case, plaintiff is seeking relief of annulment of the sale deed in the garb of declaration, therefore, he has to pay ad valorem Court fee. For the reasons recorded, no interference is called for with the impugned judgement. Dismissed. A photocopy of the order be placed on the file of each connected case. ( Alok Singh ) 01.10.2010 Judge sk.