Dr. K. Shivaram | Senior Advocate
Rahul K. Hakani | Shashi Bekal | Advocates

An issue arose on the sale of property by a power of attorney holder. The learned trial Court passed a decree and instead of cancelling the entire sale deed of 10,115 sq. ft., the sale deed to the extent of land admeasuring 2,315 sq. ft. was cancelled.

In appeal, for the cancellation of sale-deed for non-payment of sale consideration, the appellant/plaintiff relied on the decision in Kewal Krishan vs. Rajesh Kumar 2021 SCC OnLine SC 1097 and submitted that in the absence of sale consideration, the sale would be void. The respondents placed reliance on judgment of the Supreme Court bench of equal strength rendered in Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) (2020) 7 SCC 366 wherein the Supreme Court held that if the sale consideration has not been paid, it could not be a ground for cancellation of sale deed.

An issue arose as to which decision would be applicable

In case of a conflict between the two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of the earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision would be binding. Decision of a larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench unless distinguished by the latter Division Bench is binding on the High Courts and the subordinate Courts.

The appeal was dismissed.

The main question raised in the batch of appeals was whether, ‘Pan Masala’, which contains tobacco and gutka, covered by an entry in the first schedule to the Additional Duties of Excise (Goods of Special Importance) Act 1957, (ADE Act), are taxa

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