IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 4462 of 2024 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2024 In R/FIRST APPEAL NO. 4462 of 2024 ==========================================================

GANPATBHAI AMBALAL VAGHELA & ORS.

Versus VIJAYBHAI BHIKHABHAI PATEL & ORS.

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Appearance:

MR MIHIR H JOSHI, SENIOR ADVOCATE WITH MR. NISHIT P GANDHI(6946) WITH MR K B VIRVADIYA(11272) for the Appellant(s) No.

1,2,3,4,5,6,7,8,9 MR MEHUL S SHAH, SENIOR ADVOCATE WITH MR. AKASH R PATEL(6715) for the Defendant(s) No. 1 ========================================================== CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN and HONOURABLE MR.JUSTICE SANJEEV J.THAKER Date : 19/12/2024

ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)

Mr Mihir H. Joshi, learned Senior Advocate with Mr Nishit P.

Gandhi and Mr K.B. Virvadiya, learned advocates for the appellants – plaintiffs submitted that sale deed was followed by the agreement to sell wherein, the parties have agreed to pay an amount of Rs.3,80,00,000/- and accordingly, cheques were issued without date as indicated in paragraph 1. It is further submitted that there is a clear covenant in the agreement, stating that cheques have been given and in case the cheques do not get cleared; it would be construed that the amount paid is incomplete. Besides, in case the parties fail to pay the amount, the other party, will be at liberty to cancel the sale deed. As majority of the cheques got bounced, the plaintiffs were clamouring for the clarification from the defendants through WhatsApp chat (page 196). Since there was no response, that a police compliant was filed by the plaintiffs. Though complaint has been filed, however, the plaintiffs, have taken prompt steps, followed by filing of the suit, inter alia, seeking cancellation of the sale deed.

2. It is submitted that a categorical stand has been taken that as per the sale deed, it was the obligation of the defendants to have honoured the cheques for an amount of Rs.95,00,000/- which were provided on the date of the execution of the sale deed, but majority of cheques got bounced. In this background, a specific case has been made out by the plaintiffs that the defendants in collusion with each other, have procured documents and tried to grab the land and thereby, committed a fraud. Thus, the sale deed was executed with an intention, to defraud the plaintiffs and not to pay. Indeed, there was never any intention to fulfill the promise, which is clear from the events which took place after the execution of the sale deed inasmuch as, as against the consideration of Rs.3,80,00,000/-, amount paid was only Rs.58.75 lac.

3. It is submitted that in the application filed by the defendant no.1, objection has been raised on the ground that the plaintiff has not prayed for any consequential relief for recovery of the balance sale consideration and hence, the suit is vexatious and merit-less. Though heavy reliance is placed on the judgment of the Apex Court in the case of Dahiben vs. Arvindbhai Kalyanji Bhanusali reported in 2020 (0) AIJEL_SC 66338, the principle, cannot be applied to the case on hand inasmuch as, the transaction since inception has been executed with an intent to defraud the plaintiffs and with a view to grab the land.

4. It is submitted that what weighed with the learned Judge while rejecting the plaint is that the suit is premature, considering the fact that the parties have agreed for receipt of consideration to be paid within a period of three years. Hence, there is no cause available to the plaintiffs to have filed the suit.

5. It is next submitted that immediately after the execution of sale deed, another agreement to sell has been executed by the defendant no.1 in favour of defendant no.2, followed by execution of the sale deed and the parties be directed to maintain status quo so as to avoid multiplicity of litigation.

6. On the other hand, Mr Mehul S. Shah, learne