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2020 (7) TMI 786 - SC - Indian LawsMaintainability of suit - time limitation - bogus cheque - legal action initiated for over a period of 5 and ½ years from the execution of the Sale Deed in 2009 Order VII Rule 11(d), Code of Civil Procedure for payment of the balance sale consideration - HELD THAT:- The Plaintiffs have admitted the execution of the registered Sale Deed dated 02.07.2009 in favour of Defendant No. 1/Respondent No. 1 herein - The case made out in the Plaint is that even though they had executed the registered Sale Deed dated 02.07.2009 for a sale consideration of ₹ 1,74,02,000, an amount of only ₹ 40,000 was paid to them. The remaining 31 cheques mentioned in the Sale Deed, which covered the balance amount of ₹ 1,73,62,000 were alleged to be "bogus" or "false", and allegedly remained unpaid. If the case made out in the Plaint is to be believed, it would mean that almost 99% of the sale consideration i.e. ₹ 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 - 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. 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 - 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). The present case is a classic case, where 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 have failed to discharge the onus of proof that the suit was filed within the period of limitation. The plaint is therefore, liable to be rejected Under Order VII Rule 11(d) of Code of Civil Procedure. The Plaintiffs have also prayed for cancellation of the subsequent Sale Deed dated 01.04.2013 executed by Respondent No. 1 in favour of Respondent Nos. 2 and 3; since the suit in respect of the 1st Sale Deed dated 02.07.2009 is rejected both under clauses (a) and (d) of Order VII Rule 11, the prayer with respect to the 2nd Sale Deed dated 01.04.2003 cannot be entertained. The present suit filed by the Plaintiffs is clearly an abuse of the process of the court, and bereft of any merit - appeal dismissed.
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