Home » Between The Lines » Supreme Court: The appellant’s plea on limitation was illusory; the date of execution of sale deed was deliberately excluded to overcome limitation and mislead the court

Disclaimer: While every care has been taken in the preparation of this Between the Lines to ensure its accuracy at the time of publication, Vaish Associates Advocates assumes no responsibility for any errors which despite all precautions, may be found therein. Neither this bulletin nor the information contained herein constitutes a contract or will form the basis of a contract. The material contained in this document does not constitute / substitute professional advice that may be required before acting on any matter. All logos and trademarks appearing in the newsletter are property of their respective owners.

The Supreme Court of India (“SC”) by its judgement in Dahiben v. Arvindbhai Kalyanji Bhanusali through Legal Representative and Others [Civil appeal no. 9519 of 2019] (decided on July 9, 2020) upheld the order of the Gujarat High Court (“GHC”) affirming the decision of the trial court which had allowed the application of respondent nos. 2 and 3 under Order VII Rule 11 (a) and (d) of the Civil Procedure Code, 1908 (“CPC”). The said application had been filed by the said respondents for rejecting the plaint presented by the appellant towards cancellation of a sale deed.

Cancellation of a sale deed had been sought in respect of certain premises located in Village Mota, Surat (“Suit Property”), which was under restrictive tenure and hence covered under Section 73AA (restriction on transfer of occupancies of tribals to tribals or non-tribals) of the Land Revenue Code (“Land Revenue Code”). The appellant, being the owner of the Suit Property, filed an application before the Collector of Surat to obtain permission to sell the Suit Property to respondent no. 1 and recorded their NOC for the same. The Collector permitted the sale and after carrying out title verification and other procedures stipulated under the Land Revenue Code, fixed the sale price to be INR 1,74,02,000 (Indian Rupees One Crore Seventy-Four Lakhs Two Thousand only). It was decided that the purchaser, that is, respondent no. 1, would make payment by cheque and reference to the same would be made in the sale deed.

Hereinafter, the sale was carried out by a registered deed of sale dated July 2, 2009 (“Sale Deed”). Respondent No. 1 had issued 36 (thirty six) cheques pursuant to the same, the details of which were also recorded in the Sale Deed. Subsequently, respondent no. 1 sold the Suit Property to respondent nos. 2 and 3 for an amount of INR 2,01,00,000 (Indian Rupees Two Crores One Lakh only) by a registered deed of sale dated April 1, 2013. On December 05, 2014, the appellant filed a civil suit before the Principal Civil Judge, Surat wherein she impleaded both the original (respondent no. 1) and subsequent purchasers (respondent nos. 2 and 3), and prayed that the Sale Deed dated July 2, 2009 be set aside, on account of non-payment of the entire sale consideration by respondent no. 1.


The trial court had identified the following issues:
(i)  Whether there was a cause of action in the plaint.
(ii)  Whether the suit was barred by limitation.


Contentions of the appellant:

The appellant had stated in the plaint that the Sale Deed should be cancelled on the grounds that it was illegal, void and not binding as the entire consideration amount had not been paid by respondent no. 1. The appellant alleged that respondent no. 1 had paid only INR 40,000 (Indian Rupees Forty Thousand only) through 6 (six) cheques and the remaining 30 (thirty) cheques issued for INR 1,73,62,000 (Indian Rupees One Crore Seventy Three Lakhs Sixty Two Thousand only) were bogus and further, prayed for the restoration of the Suit Property.

As a corollary, the appellant also prayed for cancellation of the subsequent sale deed dated April 1, 2013 entered into by respondent no. 1 with respondent nos. 2 and 3 for the Suit Property.

Contentions of respondent nos. 2 and 3:

Respondent nos. 2 and 3 thereafter, applied for rejection of the appellant’s plaint under Order VII Rule 11 (a) and
(d) (rejection of plaint) of the CPC stating that the appellant’s plea was barred by limitation and that no cause of action was disclosed by the appellant as such. They made further submissions as follows:

  • The appellant had already admitted the execution of the Sale Deed before the Sub-Registrar, Surat.
  • The cause of the appellant was barred by limitation as it should have been filed within 3 (three) years of the date of Sale Deed, that is, on or before July 1, 2012.
  • The appellant had participated in the proceedings before the Revenue Officer for transfer of the Suit Property in the revenue records in favor of the respondent no. 1. Further, before confirming the entry into the record of rights (or ‘Hakk Patrak’) for transfer of the Suit Property in favor of respondent no. 1, a notice under Section 135D (register of mutations and register of disputed cases) of the Land Revenue Code had been served on the appellant and ever since then respondent no. 1 has been paying the land revenue for the same.
  • Respondent nos. 2 and 3 had purchased the Suit Property from respondent no. 1 after conducting due verification of title reports and inspection of revenue records. They had purchased the Suit Property by paying consideration for the amount of INR 2,01,00,000 (Indian Rupees Two Crores and One Lakh only) by the sale deed dated April 1, 2013. Pursuant to this, the names of respondent nos. 2 and 3 were entered into in the revenue records.
  • In order to mislead the court, the appellant had produced a 7/12 extract dated July 20, 2009 (which was prior to the mutation in favor of respondent no. 1).


Observations of the trial court:

On perusal of the Sale Deed, it was noted that the appellant had in fact accepted and acknowledged the payment of the full sale consideration from respondent no.1, through cheques which were issued prior to the execution of the Sale Deed, during the period between July 07, 2008 and July 2, 2009. The court held that had the appellant not been able to encash 30 (thirty) cheques, a complaint ought to have been filed, or proceedings should have been initiated for recovery of the unpaid sale consideration. There was however, nothing on record to show that the appellant had made any complaint in this regard for a period of over 5 (five) years.

The appellant had also failed to produce the returned cheques, passbooks, bank statements, or any other document to support averments made in the plaint. The court observed that the lack of action on part of the appellant for over 5 (five) years after execution of Sale Deed meant that the averment in the plaint could not be considered. The cause of action had arisen when respondent no.1, had issued bogus cheques in 2009. Herein, as per the provisions of the Limitation Act, 1963 (“Limitation Act”) the suit should have been filed by 2012.

The trial court, on the basis of the settled position in law, held that the suit of the appellant was barred by limitation, and allowed the application of respondent nos. 2 and 3 under Order VII Rule 11(d) CPC, hence rejecting the plaint.

Observations of the Gujarat High Court:

Aggrieved by the findings of the trial court, the appellant approached the GHC. The division bench of the GHC found that there was no dispute regarding the execution of the Sale Seed and its subsequent conveyance. In the said Sale Deed, it was admitted and acknowledged by the appellant that full sale consideration had been received. In fact, the Sale Deed had complete particulars with respect to payment of sale consideration by way of 36 (thirty six) cheques. The Suit Property was successfully transferred to respondent no. 1 and hence the said Sale Deed could not be held bad in law. The court also concurred with the view of the trial court that suit was barred by limitation. Further, the court stated that since the appellant had made no averments against the respondent nos. 2 and 3, there was no privity of contract between them.

Observations of the Supreme Court:

Aggrieved by the decision of the GHC, the appellant was constrained to appear before the SC. The SC examined the scope of Order VII Rule 11 of the CPC which dealt with rejection of a plaint. It was noted that the power to terminate a civil suit was a drastic one and hence the procedure laid down in Order VII Rule 11 must be followed strictly.

The SC had laid down a test for the application of Order 7 Rule 11 of the CPC. The plaint which is presented to the court has to be read in its entirety along with the documents that are relied upon, basis which it is to be determined if a decree can be passed. If on a meaningful reading of the plaint, it was found that the suit was manifestly vexatious and without any merit, and did not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 of the CPC.

The case as per the plaint was that even though the Sale Deed was executed for a consideration of INR 1,74,02,000 (Indian Rupees One crore Seventy Four Lakhs and Two Thousand only), only INR 40,000 (Indian Rupees Forty Thousand only) was paid to the appellant at the time. Whereas the averments in the plaint are completely contrary to the recitals in the plaint which record that the entire sale consideration was “paid” by respondent no. 1 during the period between July 7, 2008 and July 7, 2009. Even if the case of the appellant was to be believed, it was inconceivable that the payments had remained unpaid and the appellant would have been completely silent for a period of over 5 (five) years without even issuing a legal notice/ instituting recovery proceedings for the unpaid sale consideration.

Further, reliance was placed upon Vidyadhar v. Manikrao and Another [(1999) 3 SCC 573)] wherein it was held that the words “price paid or promised or part paid and part promised” indicated that actual payment of the whole of the price at the time of the execution of the Sale Deed was not a sine qua non for completion of the sale. Even if the whole of the price had not been paid, but the document had been executed, and thereafter registered, the sale would be complete, and the title would pass on to the transferee under the transaction. The non-payment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid, the sale could not be invalidated on this ground.

Decision of the Supreme Court

The SC held that even if the averments of the appellant were true and the entire sale consideration had not been paid it would not be a ground for cancellation of the Sale Deed. The plea that the fraud was learnt in 2014 on receipt of the index of the Sale Deed was misconceived and would not be a cause of action. The plea was illusory, and was only intended to overcome the period of limitation.

The appellant deliberately did not mention the date of the registered Sale Deed dated July 2, 2009 since it would be evident that the suit was barred by limitation. The prayer however mentioned the date of the subsequent sale deed dated April 1, 2013 when the suit property was later sold to respondent nos. 2 and 3. The omission of execution of the Sale Deed dated July 2, 2009 in the prayer clause, was done deliberately and knowingly, so as to mislead the court on the issue of limitation.

Further, the suit filed by the appellant was held to be vexatious, meritless and not disclosing a right to sue. Thus, the SC upheld the decision of the GHC and trial court in rejecting the plaint of the appellant in accordance with Order VII Rule 11 (a) and (d) of the CPC.

Vaish Associates Advocates View
The instant case is an example of misrepresentation by the plaintiffs who hid crucial information and tried to mislead the Court, creating an illusion of the existence of cause of action, despite it being barred by the statute of limitation.

It is pertinent to note that even though the limitation in this case was 3 (three) years, the appellant had filed their suit after a period of 5 (five) years from the execution of the Sale Deed, stating non-payment of consideration. As far as rejection of a plaint is concerned which is the essence of this judgement, Order VII, Rule 11 of the CPC deals with various circumstances in respect of such rejection. The aforestated provision is pivotal in the sense that it saves the time of the Court from frivolous and vexatious litigation. Further, these provisions are mandatory in nature, and make use of the words, “The plaint shall be rejected in the following cases…”

Upholding the application of respondent nos. 2 and 3 under the aforesaid provisions of CPC, the SC rejected the plaint as: (a) no cause of action could be made out and (b) suit was barred by limitation. The SC had acted upon the settled principle of law to hold that there is no merit to the argument of the appellant and the plaint could not be entertained as it fell under Order VII Rule 11 of the CPC.

For more information please write to Mr. Bomi Daruwala at [email protected]