TMI Blog2023 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Therefore, in the instant case if the plaint averments are accepted that the sale having been made, the only recourse left to the appellant was to file a suit for recovery and evidence would show that for dishonour of the cheque proceeding has already been drawn and the complaint was filed under Section 138 of the Negotiable Instrument Act. As such the agreement Ex.P/3 cannot be given over riding effect over registered document of sale whereby the property has been transferred to the defendant. Consequently, the document Ex.P/3 wherein the plaintiff relied that in case non payment the agreement deemed to be cancelled cannot be given a legal precedent. There are no merit in the appeal, warranting interference in the impugned judgment and decree passed by the Court below, which is just and proper - appeal dismissed. - Hon'ble Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendants further stated that for the rest of the amount, Rs. 30.00 lacs loan would be availed from HDFC Bank and thereafter, the amount would be paid. In consequence thereof, after obtaining loan of Rs. 30.00 lacs, a cheque of Rs. 30.00 lacs was given to the defendants. The defendants stated that it was agreed that in case Rs. 12,30,000/-is paid in cash, the cheque would be returned to him. The defendant further stated that as per the agreement, an amount of Rs. 7,70,000/-was paid, however, on the subsequent time when Rs. 4,80,000 was paid and cheque was demanded back, but eventually the cheque was not returned by the defendants Instead, it was encashed through the Bank and by misusing the cheque, the complaint under the Negotiable Instruments Act was filed. It further stated that despite receipt of Rs. 42,50,000/-, the plaintiff has not delivered the possession of the suit property and after the sale deed has been executed, earlier agreement to this effect has come to an automatic end. Further the defendants stated that on unsustainable ground, the application for mutation is being objected and dismissal of suit was prayed. The counter claim was also made by the defendants for ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 42,50,000/-. He would further submit that as per the sale deed Ex.D-1, the entire sale consideration was received by the seller and thereafter, the sale deed was executed. He would also submit that the entire sale consideration having been received, no oral evidence can be looked into when the document is registered one. He placed reliance upon the decision rendered by the Supreme Court in the matter of Damodhar Narayan Sawale (D) through LRs. v Shri Tejrao Bajirao Mhaske Ors. (Civil Appeal No. 930 of 2023 decided on 4-5-2023). He would further submit that considering the fact that the plaintiff has purchased the suit property for a valuable consideration and possession has not been delivered, the decree for possession was passed in his favour. Therefore, the part of judgment and decree whereby the possession has been ordered which effected the dismissal of the suit filed by the plaintiff is well merited . Hence the appeal filed by the plaintiff be dismissed. 7. We have heard learned counsel appearing for the parties at length and perused the record. 8. In respect of the suit property the sale deed is Ex.D/1, which shows that the suit property bearing khasra No. 216/3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.-A contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. 10. In the case of non payment of sale consideration, the issue came up for consideration before the Supreme Court in the matter of Dahiben Versus Arvindbhai Kalyanji Bhanusali (Gajra) (2020) 7 SCC 366 wherein the Supreme Court at paras 29.7 held that if the sale consideration has not been paid, it could not be a ground for cancellation of sale deed. Paras 29.7 29.9 are relevant here and quoted below : 29.7. Section 54 of the Transfer of Property Act, 1882 provides as under: 54. Sale defined.-- Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. The definition of sale indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollow the decision which is correct and accurate whether it is earlier or later. There are High Courts which hold that decision of earlier Bench is binding because of the theory of binding precedent and Article 141 of the Constitution of India. There are also decisions which hold that single Judge differing from another single Judge decision should refer the case to larger Bench, otherwise he is bound by it. Decisions which are rendered without considering the decisions expressing contrary view have no value as a precedent. But in our considered opinion, the position may be stated thus- With regard to the High Court, a single Bench is bound by the decision of another single Bench. In case, he does not agree with the view of the other single Bench, he should refer the matter to the larger Bench. Similarly, Division Bench is bound by the Judgment of earlier Division Bench. In case, it does not agree with the view of the earlier Division Bench, it should refer the matter to larger Bench. In case of conflict between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed except when it is explained by the latter Division ..... X X X X Extracts X X X X X X X X Extracts X X X X
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