Case Note & Summary
The appellant, M/s. Primella Sanitary Products Pvt. Ltd., filed a civil suit for specific performance of an agreement dated 4 September 1985 against respondent nos. 1 to 6, who were brothers and their wives. The agreement pertained to the sale of an island known as 'Conco' at Palolem, Goa, for a total consideration of Rs. 6,50,000. The appellant paid an earnest amount of Rs. 50,000. Under the agreement, the vendors were required to establish a good and marketable title, and the sale was to be completed within one month from the date of such establishment. The vendors had declared the property free from encumbrances, but it later emerged that the property was mortgaged to the Madgaon Urban Cooperative Bank Ltd. The appellant alleged that despite repeated requests, the vendors failed to complete the sale. Respondent no. 1, by letter dated 3 April 1987, informed the appellant that a claim raised by his sister (respondent no. 7) obstructed the transaction and attempted to refund a part of the earnest money, which the appellant rejected. The vendors failed to discharge their obligations. Meanwhile, respondent no. 7, the sister of respondent nos. 1, 3 and 5, raised a claim over the property. In inventory proceedings between the family members, the suit property was allotted to respondent nos. 7 and 8 (the sister and her husband). Subsequently, respondent nos. 7 and 8 executed a sale deed dated 14 November 1995 in favour of respondent no. 9, Syscon Consultants Private Limited. The appellant's suit sought specific performance of the agreement, alternatively compensation of Rs. 2,68,29,038.80, a declaration that the inventory order dated 30 January 1991 was fraudulent and void, and a declaration that the subsequent sale deed was null and void, along with a permanent injunction. The trial court (Civil Judge, Senior Division, Margao) by judgment dated 31 December 2001 partly decreed the suit. It directed respondent nos. 1 to 6 to pay Rs. 50,000 with interest at 21% per annum (later reduced to 6% per annum by order dated 23 April 2002) and directed respondent nos. 1 to 8 to pay Rs. 17,00,000 with interest at 6% per annum from 12 May 1993. However, the claim for specific performance was dismissed, and the suit against respondent no. 9 was dismissed. The appellant filed First Appeal No. 179 of 2003 before the High Court of Bombay at Goa challenging the refusal of specific performance and the reduction of interest. The High Court heard the appeal along with a miscellaneous civil application and delivered oral judgment on 5 August 2010. The excerpt of the judgment provided does not contain the final disposition or reasoning of the High Court.
Issue of Consideration
FIRST APPEAL NO. 179 OF 2003
Case Details
2010 LawText (BOM) (08) 116
First Appeal No. 179 of 2003 along with Miscellaneous Civil Application No. 65 of 2010
S.J. Vazifdar, U.D. Salvi
Bomi Zaiwalla, A.F. Deniz, Amey Kakodkar, Vikram, M.S. Khandeparkar, P.A. Kholkar, M.S. Usgaonkar, I. Agha, S.G. Dessai, Panithian A.V.
M/s. Primella Sanitary Products Pvt. Ltd.
1. Shri Gurudas Vishwanath Sinai Gaitonde (since deceased) through legal heirs (Vishwanath Gurudas Sinai Gaitonde and Miss Sonia Gurudas Sinai Gaitonde), 2. Smt. Sunita Gurudas Gaitonde, 3. Shri Ratnakar Vishwanath Gaitonde (since deceased) through legal heirs (Yatin Ratnakar Gaitonde and Mrs. Anupa Ratnakar Gaitonde), 4. Smt. Savita Ratnakar Gaitonde, 5. Shri Jayendra Vishwanath Sinai Gaitonde, 6. Smt. Madhavi Jayendra Gaitonde, 7. Smt. Kishori Prabhakant Nayak, 8. Shri Prabhakant Ramrai Nayak, 9. Syscon Consultants Private Limited
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Nature of Litigation
Civil suit for specific performance of a contract for sale of land, with alternative claim for compensation, and for declarations and injunction.
Remedy Sought
The appellant (plaintiff) sought specific performance of the agreement dated 4 September 1985, directing respondent nos. 1 to 6 to execute sale deed of the island 'Conco' at Palolem, Goa; in the alternative, compensation of Rs. 2,68,29,038.80; a declaration that the inventory order dated 30 January 1991 was void as fraudulent; a declaration that the sale deed dated 14 November 1995 to respondent no. 9 was null and void; and a permanent injunction restraining transfer of the suit property.
Filing Reason
Respondent nos. 1 to 6 failed to complete the sale despite repeated requests and assurances; they disclosed that the property was mortgaged and later claimed that a sister (respondent no. 7) had a claim, leading to inventory proceedings and eventual sale to respondent no. 9.
Previous Decisions
The trial court (Civil Judge, Senior Division, Margao) by judgment dated 31 December 2001 partly decreed the suit, directing respondent nos. 1 to 6 to pay Rs. 50,000 with interest at 21% per annum (later reduced to 6% per annum by order dated 23 April 2002) and respondent nos. 1 to 8 to pay Rs. 17,00,000 with interest at 6% per annum from 12 May 1993; the claim for specific performance was dismissed; the suit against respondent no. 9 was dismissed. The court also disposed of a connected suit, Regular Civil Suit No. 746/2000 (Special Civil Suit No. 105/87/A) filed by defendant nos. 7 and 8.
Judgment Excerpts
This is an Appeal against the order and judgment of the learned Civil Judge, Senior Division at Margao, Goa, dated 31 December, 2001, partly decreeing the Appellant’s suit against Respondent Nos.1 to 8 and dismissing the same against Respondent No.9.
The Appellant filed the suit for specific performance of a contract dated 4 September, 1985 entered into between Respondent Nos.1 to 6 and the Appellant, and for consequential reliefs, a decree in the sum of Rs.12,29,038/- as compensation for breach of the contract in addition to the specific performance and a permanent injunction...
The sale shall be completed within one month from the date of establishment of a good and marketable title of the Vendor.
Respondent Nos.1 to 6 have been directed to pay the Appellant a sum of Rs. 50,000/- with interest at twenty one percent per annum from the date of the suit till payment and Respondent Nos.1 to 8 have been ordered and decreed to pay the Appellant a sum of Rs.17,00,000/- with interest at six per cent per annum from 12 th May, 1993 till payment.
The Appellant’s claim for specific performance was rejected.
Procedural History
The appellant filed Special Civil Suit No.88/87/A before the Civil Judge, Senior Division, Margao, Goa, for specific performance and other reliefs. The trial court passed a judgment and order on 31 December 2001, partly decreeing the suit by awarding certain monetary sums with interest but refusing specific performance and dismissing the suit against respondent no. 9. Aggrieved, the appellant filed First Appeal No. 179 of 2003 before the High Court of Bombay at Goa. During pendency, some respondents died and legal heirs were brought on record. A miscellaneous civil application was also filed. The High Court heard the appeal and delivered oral judgment on 5 August 2010. The excerpt of the judgment provided does not include the final disposition.
