Valmiki J. Mehta, J. (Oral)

1. The challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure (CPC), 1908 is to impugned judgment of the Trial Court dated 30.3.2010. By virtue of the impugned judgment, the Trial Court decreed the suit of the respondent/plaintiff by declaring the sale deed dated 24.3.2005, Ex.DW1/2, executed in favour of the appellant/defendant as null and void. The Trial Court consequently held the respondent/plaintiff entitled to possession of the suit property being B-29/30/1, Friends Colony Industrial Area, Jhilmil Tahirpur Colony, Ilaqa Shahdara, Delhi-95. The appellant was also restrained from selling, etc. the suit property. The suit of the respondent/plaintiff for mesne profits was however dismissed.

2. The facts of the case are that the respondent as a seller and the appellant as a buyer entered into a registered sale deed with respect to the property admeasuring 67 square yards bearing No. B-29/30/1, Friends Colony Industrial Area, Jhilmil Tahirpur Colony, Ilaqa Shahdara, Delhi-95. Under this registered sale deed, the appellant/defendant received possession of the suit property. The appellant/defendant/buyer paid a sum of Rs. 20,000/- on the date of execution and registration of the sale deed and also delivered 26 post-dated cheques of Rs. 30,000/- each totaling to Rs. 7,80,000/-. The first of these cheques was encashable after about 11 months of the sale deed. As per para 5 of the sale deed, the respondent/plaintiff was liable to clear all the outstandings of the local authorities including the Electricity Authority, House Tax Authority and Water Supply Department. The respondent/plaintiff is said to have not given the `No Dues Certificates' of these Authorities and therefore the appellant/defendant stopped the payment of the cheques by closing the account resulting in filing of the subject suit.

3. The respondent/plaintiff therefore filed the subject suit for declaring the sale deed to be null and void because consideration under the same was not paid.

4. Learned counsel for the appellant argued two main points before this Court. The first point is that by virtue of Para 5 of the sale deed, it could not be disputed that the respondent/plaintiff was liable to clear all the outgoings of the property till the date of execution of the sale deed and which included the dues of the Electricity Authority, Water Authority and the House Tax Authority. It is argued that admittedly no such `No Dues Certificate' was given and therefore the appellant/defendant had to stop the payment of the cheques. It is argued that the Electricity Authority had claimed an amount of approximately about Rs. 67,00,000/- on account of the electricity connection in the property and which bill had been issued on account of dishonest abstraction of energy from the earlier electricity connection.

5. The second point which is argued is that as per Section 55(4)(b) of the Transfer of Property Act, 1882, once there exists a registered sale deed, title in property is transferred unless the payment of consideration is a condition precedent for transfer of the title. It is argued that in the present case, the sale deed does not show that payment of price was a condition precedent to the transfer of the property. Reliance is placed upon the recent judgment of the Supreme Court reported as Kaliaperumal v. Rajagopal & Anr., 2009 (II) SLT 789 and para 8 thereof.

6. In response, the learned counsel for the respondent argued that there were no dues of the Electricity Authority towards the subject property and the dues were, in fact, towards another part of the same property. It is argued that once the sale consideration is not paid, the respondent/plaintiff was entitled to get the sale deed declared null and void.

7. In my opinion, the arguments as advanced by counsel for the appellant are well merited and thereof the appeal deserves to succeed. It cannot be urged with any conviction that the respondent/plaintiff was