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TMI Blog2023 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... he sale deed, out of sale consideration of Rs. 42,50,000/-, Rs. 30,00,000/-was paid by Cheque which the defendant availed on loan and for remaining Rs. 12,30,000/-a cheque was given though in the sale deed, the amount of sale consideration was stated to be received in cash. At the same time, it was further agreed that an agreement was executed, which purports that an amount of Rs. 12,30,000/-is being given by cheque which is entered as cash in the sale deed and further if the cheque was dishonoured by the bank on subsequent point of time, the sale deed ipso facto would be cancelled. Subsequently when the cheque was dishonoured, the plaintiff claimed that the sale deed has come to an automatic end whereas the defendants pursued for mutation of their names in the revenue documents, which resulted into a cause of action to be in favour of the plaintiff. Therefore, the suit was filed for cancellation of the sale deed and to restrain the defendants from interfering the possession of the plaintiff. 3. Written statement was filed on behalf of the defendants in which it has been submitted that the plaintiff offered for purchase of the suit property for a sale consideration of Rs. 50.00 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, Rs. 30.00 lacs was paid by availing bank loan and the rest of the amount Rs. 12,30,000/-was given by way of cheque though it was entered as a cash in the sale deed. He would also submit that on the same date, agreement was entered between the parties as Ex.P-3, which would show that a cheque of Rs. 12,30,000/-was given though in the sale deed it was shown as cash receipt and it was agreed in between the parties that in case the cheque is dishonoured, the entire sale deed would stand cancelled. He would next submit that the sale deed was executed on the promise of payment of sale consideration but the sale consideration was not paid because of the fact that the Cheque of Rs. 12,30,000/-was dishonoured. Consequently, it would lead to fraud. Hence declaration to the agreement Ex.P-3 which was agreed between the parties is required to be given effect for cancellation of the entire sale deed. He would submit that in the agreed terms of the parties when such arrangements have been arrived at to show that payment has not been made, the sale deed cannot be given effect to especially when the parties agreed upon to annul the sale deed. 6. Per contra, learned counsel for the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing given and the registry amount shows Rs. 42,30,000/-. The agreement further stated that if the cheque stands dishonoured then the sale deed would be deemed to be cancelled. The comparison of the sale deed Ex.D/1, which was registered on 19-11-2010 and the agreement which was of 18-11-2010 shows that both the documents contradicts with each other. The payment of consideration in the registered sale deed shows that for Rs. 12,50,000/-a cheque was given, which according to the plaintiff was dishonoured. Another document has been produced showing the receipt of payment of Rs. 7,70,000/-, which is marked as Ex.D/7. The plaintiff stated that after the cheque was presented for clearance the same was dishonoured, therefore, the amount of consideration having not been paid, the sale deed would be deemed to be cancelled as per the agreement. 9. At this juncture, it would be relevant to quote the provisions of Section 54 of the Transfer of Property Act, 1882 (for short 'the Act, 1882') for ready reference : "54. "Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part-promised. Sale how made.-such transfer, in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t disclose a right to sue. The plaint is liable to be rejected under Order 7 Rule 11(a). 11. A perusal of Kewal Kishan Vs. Rajesh Kumar 2021 SCC OnLine SC 1097would show that the earlier judgment of the equal strength of the Supreme Court Bench rendered in the matter of Dahiben (supra) was not under consideration while the subsequent judgment of Kewal Krishan v Rajesh Kumar 2021 SCC OnLine SC 1097 is passed. Under the circumstances we would follow the judgment of Madhya Pradesh High Court in the matter of J.B.O. Association vs. State of M.P. 2003 (1) MPLJ 513 wherein the High Court held that in case of conflict between two decisions of the Apex Court Benches comprising of equal number of judges, decision of earlier bench is binding unless explained by the latter bench of equal strength in which case the later decision is binding. Therefore, it was held that the decision of the earlier Division Bench unless distinguished by the decision of latter Division Bench, would be binding on the High Court and the subordinate courts. Paragraph 9 is relevant and quoted hereinbelow: "9. Having considered the matter with broader dimensions, we find that various High Courts have given differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion which is found correct and accurate to the case under consideration. High Courts and subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate The common thread which runs through various decisions of apex Court seems to be that great value has to be attached to precedent which has taken the shape of rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees. Full Bench decision in Balbir Singh's case (supra) which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the Judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act, in our considered opinion, for reasons recorded in preceding paragraphs of this judgment, does not lay down the correct law as to application of precedent and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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