IMPORTANT POINT
A sale deed executed without full payment of consideration cannot be declared null and void; ownership transfers upon execution, and plaintiffs have other remedies for recovery.

ORDER :

1) The applicant has challenged the order passed by the learned Third Civil Judge Class-I, Bilaspur, District Bilaspur (C.G.) in Civil Suit No. 336-A/2023 dated 15.02.2024 whereby an application moved under Order 7 Rule 11(a)(c)(d) of the CPC was rejected.

2) The facts of the present case are that the plaintiff/non-applicant No.1 filed a Civil Suit for declaration to the effect that the sale deed executed by her on 12.07.2023 in favour of the applicant/defendant No.1 in respect of the land bearing Survey Nos. 423/2 and 423/3 situated at Village-Gatuari, Patwari Circle No. 21, Tehsil and District-Bilaspur (C.G.) is null and void as the consideration was not paid. It is further stated that defendant No.1 agreed to purchase the land belonging to the plaintiff and at the time of registration of the sale deed, a cheque bearing No. 304548 payable at the State Bank of India dated 12.07.2023 was handed over. After registration of the sale deed, the cheque was presented before the Bank of Baroda, Branch Bilaspur (C.G.) and the same was dishonoured as confirmation from the client could not be received by the concerned branch of the Bank. The plaintiff served a legal notice upon defendant No.1 and thereafter filed a Civil Suit on 11.08.2023 to declare the sale deed dated 12.07.2023 null and void and for a permanent injunction.

3) The defendant No.1/applicant moved an application under Order 7 Rule 11 (a)(c)(d) of CPC on the ground that though a cheque was issued in favour of the plaintiff, in the absence of confirmation on the part of defendant No.1, it was dishonoured. It is further pleaded that later on, the entire amount of consideration was transferred to the bank account of the plaintiff but it was refunded. It is further pleaded that the sale deed cannot be declared null and void on the grounds of non-payment of consideration. It is argued that in the absence of a cause of action, the suit is not maintainable. It is also pleaded that the plaintiff herself is not ready to accept the consideration.

4) The application under Order 7 Rule 11 (a)(c)(d) of CPC was replied to by the plaintiff and its contents were denied. Learned Trial Court vide order dated 15.02.2024 rejected the application holding that the civil suit was properly valued and proper Court Fees were affixed. The consideration is not paid to the plaintiff and according to the provisions of Section 54 of the Transfer of the Property Act, 1882, the sale deed without consideration is null and void.

5) Mr. Khetrapal, the learned counsel appearing for the applicant/defendant No.1 submitted that defendant No.1 was ready to make payment of consideration and he is still ready. He further submitted that the amount of consideration was transferred to the bank account of the plaintiff but the same was refunded to defendant No.1. He also submitted that the registered sale deed was executed strictly in accordance with the applicable Rules and title passed in favour of defendant No.1. He further argued that the civil suit for cancellation of sale deed on the ground of non-payment of consideration is not maintainable. In support of his submissions, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal representatives and others reported in 2020(7) SCC 366.

6) On the other hand, the learned counsel appearing for non-applicant No.1/plaintiff would oppose the submissions made by Mr. Khetrapal. Mr. Tiwari submitted that a single penny was not paid against the execution of the sale deed, therefore, it cannot be said that a legal sale deed was executed between the parties. He further argued that possession was also not handed over to defendant No.1 and according to Section 54 of the Transfer of the Property Act, the suit would be maintainable. He also argued that the issue involved in the present case cannot be decided as a preliminary issue as it requires evidence of both the parties, therefo