The sale deed shall not be void if the sale price or part thereof is not paid. Suit simpliciter for declaration would lie if the sale deed contains a recital of full consideration received.

Alok Singh, J.

1. In all the four petitions, identical question is involved, hence with the consent of learned counsel for the parties, all the four petitions are being heard and disposed of by this common order.

2. For the sake of brevity, with the consent of learned counsel for me parties, CR No.3091 of 2007 is being taken as a leading case.

3. Present petition is filed challenging the order dated 12.5.2007 passed by the Additional Civil Judge, Senior Division, Gurgaon, thereby directing the plaintiff to pay ad valorem Court fee on the sale consideration shown in the sale deed in question.

4. Brief facts of the present case, inter-alia, are that plaintiff -petitioner herein has filed suit seeking declaration to the effect that saledeed bearing registration No.6680, Additional Book No. 1 Volume No.8482 executed between the plaintiff and defendant duly registered before the office of the Sub Registrar is null and void as post-dated cheques dated 23.7.2006 and 10.8.06 paid as part of the sale consideration were returned uncashed/dishonoured. It is contended in the plaint that defendant has agreed to purchase the property mentioned in the sale deed for Rs.2,28,12,500/-. Plaintiff has executed a sale deed dated 22.6.2006 in favour of the defendant for a total consideration of Rs,2,28,12,500/-. In consideration of the sale deed towards the price money of the land sold, defendant has handed over three cheques to the plaintiff, details of which are as under: -

"Sr No. Amount Cheque No. Date Drawn on a. Rs. 91,25,000 925001 23.06.2006 Citibank NA

b. Rs. 75,28,125 925004 23.07.2006 Citibank NA

c. Rs. 61,59,375 925003 10.08.2006 Citibank NA"

5. One cheque dated 23.6.2006 for Rs.91,25,000/- was cleared on presentation and other two cheques for the sum of Rs.75,28,125/- and Rs.61,59,375/- were returned uncashed for want of sufficient funds. It has further been contended that the plaintiff has issued notice to the defendant for encashment of the cheques, however, defendant replied that since plaintiff had not paid the amount of the land to the original farmers, hence, cheques were not cleared. It is further contended by the plaintiff that since total consideration has not been paid, hence sale deed is null and void, therefore, the same may be declared null and void as two cheques dated 23.7.2006 and 10.8.2006 were uncashed.

6. Defendant moved an application under Order 7 Rule 11. CPC before the trial Court saying that in fact possession was delivered to the defendant pursuant to the sale deed and relief sought in the plaint is not merely a declaration but it amounts to cancellation of the sale deed and the plaint also contains hidden relief of possession. Prayer was made to the trial Court that the plaintiff be directed to pay ad valorem Court fee on the sale consideration shown in the sale deed, failing which the plaint may be rejected.

7. A reply was filed by the plaintiff to the application filed by the defendant stating that plaintiff is already in possession and has not parted with possession. It has further been contended by the plaintiff that since full consideration has not been paid, hence, sale deed is void, hence suit simpliciter for declaration is maintainable, hence plaintiff cannot be asked to pay ad valorem Court fee on the market value of the land or sale consideration mentioned in the sale deed.

8. The trial Court vide impugned order dated 12.5.2007 has observed that Court is not prevented from looking at the substance of the relief claimed. It has further been observed by the trial Court that in the present case since the plaintiff is party to the sale-deed and also received part of the sale consideration of Rs.91,25,000/- hence, he is required to pay ad valorem Court fee. Feeling aggrieved from the order passed by the trial Court, plaintiff has invoked supervisory jurisdiction, of this Court under Article 227 of the Constitution of India.

9. I have heard learned counsel for the parties and perused the record.

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