1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY PANAJI BENCH, GOA FIRST APPEAL NO. 179 OF 2003 M/s. Primella Sanitary Products Pvt. Ltd., ] A company registered under the companies ] Act, having its registered office at Dubash ] House, 4th Floor, J.R. Heredia Marg, ] Ballard Estate, Bombay, and having its ] factory and establishment at 2nd Arvalle ] Road, Cortalim, Goa, represented by its ] constituted attorney Shri A.A. Tandle ] ... Appellant Versus 1. Shri Gurudas Vishwanath Sinai Gaitonde ] of major age, residing at Flat No.12, ] Borges Building, Vasco-de-Gama-Goa. ] (since deceased, represented by his ] legal heirs;) ] 1-a) Shri Vishwanath Gurudas Sinai ] Gaitonde, major of age and ] 1-b) Miss Sonia Gurudas Sinai Gaitonde ] major of age, Both r/o Flat No.12, ] Borges Building, Vasco-de-Gama, Goa. ] 2. Smt. Sunita Gurudas Gaitonde, ] of major age, residing at Flat No.12, ] Borges Building, Vasco-de-Gama-Goa. ] 3. Shri Ratnakar Vishwanath, ] Gaitonde (since deceased) ] through his legal heirs ] 3-a) Shri Yatin Ratnakar Gaitonde, ] of major age, 3-b) Mrs. Anupa Ratnakar Gaitonde, ] of major age, both residing at ] Vishwanath Sumathi Building, 1st Floor, ] 2 below Sumathi Enterprises, ] Ponda, Goa. ] 4. Smt. Savita Ratnakar Gaitonde ] of major age, residing at Vishwanath ] Sumathi Building, Below Sumathi ] Enterprises, Ponda, Goa. ] 5. Shri Jayendra Vishwanath Sinai ] Gaitonde, of major age, residing at ] Vikas Building, 2nd floor, Near Pharmacy ] College, St. Inez, Panaji, Goa. ] 6. Smt. Madhavi Jayendra Gaitonde, ] of major age, c/o.Mr. Jayendra V. ] Gaitonde, residing at Vikas Building, ] 2nd floor, Near Pharmacy College, ] St. Inez, Panaji, Goa. ] 7. Smt. Kishori Prabhakant Nayak, ] of major age, residing at 23, Sushma ] Sadan, Parmar Guruji Marg, Parel, ] Bombay 400 012, represented by her ] constituted attorney Shri Gurudev ] Ganba Sinai Gaitonde, residing at ] Tonea, Caranzalem, Ilhas, Goa. ] 8. Shri Prabhakant Ramrai Nayak, ] of major age, residing at 23, Sushma ] Sadan, Parmar Guruji Marg, Parel, ] Bombay 400 012, represented by her ] constituted attorney Shri Gurudev ] Ganba Sinai Gaitonde, residing at ] Tonea, Caranzalem, Ilhas, Goa. ] 9. Syscon Consultants Private Limited, ] a company registered under the ] Companies Act, 1956, having its ] registered office at 24, Hassa Mahal, ] 223, Cuffe Parade, Mumbai – 400005. ] ... Respondents 3 ALONGWITH MISCELLANEOUS CIVIL APPLICATION NO. 65 OF 2010 IN FIRST APPEAL NO. 179 OF 2003 M/s. Primella Sanitary Products Pvt. Ltd. ] A company registered under the companies ] Act, having its registered office at Dubash ] House, 4th floor, J.R. Heredia Marg, Ballard ] Estate, Bombay and having its factory and ] establishment at 2nd Arvalle Road, Cortalim ] Goa, represented by its constituted ] attorney Shri A.A. Tandle. ] ... Appellant Versus 1. Shri Gurudas Vishwanath Sinai Gaitonde ] of major age, resident at flat no.12, ] Borges Building, Vasco-de-Gama, Goa. ] since deceased, represented by his legal ] heirs.) ] 1-a. Shri Vishwanath Gurudas Sinai ] Gaitonde, major of age and` ] 1-b. Miss Sonia Gurudas Sinai Gaitonde ] major of age, Both r/o. Flat no.12, ] Borges Building,Vasco-de-Gama, Goa ] 2. Shri Sunita Gurudas Gaitonde, ] of major age, resising at Flat no.12, ] Borges Building,Vasco-de-Gama, Goa ] 3. Shri Ratnakar Vishwanath Gaitonde ] (since deceased) through his legal heirs; ] 3-a. Shri Yatin Ratnakar Gaitonde, ] of major age, ] 4 3-b. Mrs. Anupa Ratnakar Gaitonde, ] of major age, both residing at ] Vishwanath Building, 1st floor, below ] Sumati Enterprises, Ponda, Goa. ] 4. Smt. Savita Ratnakar Gaitonde, ] of major age, residing at Vishwanath ] Sumathi Building, below Sumati ] Enterprises, Ponda, Goa. ] 5. Shri Jayendra Vishwanath Sinai Gaitonde] of major age, residing at Vikas Building, ] 2nd floor, Near Pharmacy College, ] St. Inez, Panaji, Goa. ] 6. Smt. Madhavi Jayendra Gaitonde, ] of major age, c/o. Mr. Jayendra V. ] Gaitonde, residing at Vikas Building, ] 2nd floor, near Pharmacy College, ] St. Inez, Panaji, Goa. ] 7. Smt.Kishori Prabhakant Nayak, ] of major, residing at 23, Sushma Sadan, ] Parmar Guruji Marg, Parel, Bombay ] 400012, represented by her constituted ] attorney Shri Gurudev Ganba Sinai ] Gaitonde, residing at Tonca, Caranzalem ] Ilhas, Goa. ] 8. Shri Prabhakant Ramrai Nayak, ] of major age, residing at 23, Sushma ] Sadan, Parmar Guruji Marg, Parel, ] Bombay-400 012 by her constituted ] attorney Shri Gurudev Ganba Sinai ] Gaitonde, residing at Tonca, Caranzalem, ] Ilhas, Goa. ] 9. Syscon Consultants Private Limited, ] A company registered under the ] Companies Act, 1956, having its ] 5 registered office at 24, Hassa Mahal, ] 223, Cuffe Parade, Mumbai – 400 005. ] ... Respondents Mr. Bomi Zaiwalla, senior advocate with Mr. A.F. Deniz, Mr. Amey Kakodkar and Mr. Vikram for the Appellant. Mr. M.S. Khandeparkar with Mr. P.A. Kholkar for the Respondent Nos.1 to 6. Mr. M.S. Usgaonkar, senior advocate with Mr. I. Agha for the Respondent Nos.7 and 8. Mr. S.G. Dessai, senior advocate with Mr. Panithian A.V. for the Respondent No..9. CORAM: S.J. VAZIFDAR & U.D. SALVI, JJ. DATED : 5TH AUGUST, 2010. ORAL JUDGMENT: [Per S.J. Vazifdar, J.] 1. This is an Appeal against the order and judgment of the learned Civil Judge, Senior Division at Margao, Goa, dated 31st December, 2001, partly decreeing the Appellant’s suit against Respondent Nos.1 to 8 and dismissing the same against Respondent No.9. 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 6 at six per cent per annum from 12th May, 1993 till payment. The Appellant’s claim for specific performance was rejected. Thereafter on the application of Respondent Nos.1 to 6, the trial court by an order dated 23rd April, 2002, reduced the rate of interest payable on the sum of Rs.50,000/- from twenty-one per cent per annum to six per cent per annum. By the impugned order and judgment, the learned Judge also disposed of Regular Civil Suit No.746/2000 (Special Civil Suit No.105/87/A) filed by Defendant Nos.7 and 8. 2. The Appellant and the Respondents are arrayed as they were in the suit. The Appellant is the Plaintiff and Respondent Nos.1 to 9 are Defendant Nos.1 to 9. Original Defendant No.1 having expired, his heirs were brought on record as Defendant Nos.1-a and 1-b. Original Defendant No.3 having expired, his heirs were brought on record as Defendant Nos.3-a and 3-b. Respondent Nos.1, 3 and 5 are brothers and Respondent No.7 is their sister. Respondent Nos.1, 3 and 5 are the husbands of Respondent Nos.2, 4 and 6 respectively. Respondent No.8 is the husband of Respondent No.7. Respondent No.9 is Syscon Consultants 7 Private Limited. 3. I will refer to the facts from the record in Special Civil Suit No.88/87/A, filed by the Appellant. THE PLAINT : 4. The Appellant filed the suit for specific performance of a contract dated 4th 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, restraining the Respondents from selling, transferring and/or creating any encumbrances, interest, charge, restriction etc. on the suit property in favour of any person, other than the Appellant. The Appellant also sought a declaration that an order dated 30th January, 1991, passed in the inventory proceedings between Respondent Nos.1 to 8 is vitiated by fraud and illegality to the extent of the allotment of the suit property to Respondent Nos.7 and 8 and for setting aside the same. In the alternative to the specific performance, the Appellant claimed a decree in the sum of Rs. 8 2,68,29,038.80. The Appellant further sought a declaration that a sale deed in respect of the suit property dated 14th November, 1995 executed by the Respondent Nos.7 and 8 on the one hand as vendors in favour of the Respondent No.9, as the purchaser, is null and void and for the cancellation thereof. 5. The Appellant’s case in the plaint is this. The said agreement dated 4th September, 1985, was executed by the Appellant and Respondent Nos.1 to 6 whereby Respondent Nos.1 to 6 agreed to sell to the Appellant landed property being an island - “CONCO”, Palolem, Goa, for a consideration of Rs.6,50,000/-. Clauses 3, 4, 8 and 9 of the agreement are as under :- “3. The Vendor hereby declares that the said land agreed to be sold is free from any encumbrances, attachment, charge or other claims, rights and demands and is not effected by any notice or scheme of acquisition or requisition and that the Vendors have among themselves the full power and absolute authority to sell and deal with the said land. The Vendor shall at his own expense effectually indemnify and keep indemnified the Purchasers from and against all claims, demands, losses, damages, costs and expenses, if any and whatsoever, sustained, incurred or suffered by the Purchaser, on account of any defect in the title of the Vendor or any change or encumbrance or any scheme of acquisition or requisition effecting the land hereby 9 contracted to be sold. 4. The Purchaser has this day paid to the Vendor the sum of Rs.50,000/- (Rupees fifty thousand only) as and by way of earnest money (the payment and receipt whereof the Vendor does hereby admit and acknowledge and the balance of the purchase money amounting to Rs. 6 lacs (Rupees six lacs only) shall be paid at the time of the completion of the sale. Simultaneously with the execution of this agreement the Vendor shall at his own cost furnish to the Purchasers an abstract of all title deeds and other papers and writings including copies or extracts from records of the Talati or Circle Inspector relating to the said land. The sale shall be completed within one month from the date of establishment of a good and marketable title of the Vendor. ............... 8. If a good and marketable title is not made out or the said land is found to be subject to any encumbrances charges or attachments or other claims rights or demands the Purchaser shall be at liberty to rescind this Agreement and the Vendor shall in the event forthwith refund the said earnest money with interest at 21% per annum. 9. If the Vendor fails and or neglects to complete the sale after the title being made out as aforesaid or otherwise to carry out any one or more of the obligations on his part as herein contained or enjoined upon by any law for the time being in force the Purchaser shall be at liberty to enforce specific performance of this Agreement or recover the earnest money with interest at 21% per annum.” 6. Prior to executing the agreement, the Appellant inspected the relevant documents relating to the title to the suit property, including 10 survey records and a deed of declaration and succession made by Respondent Nos.1, 3 and 5 dated 3rd November, 1981, which I will refer to shortly. Based on these documents, the Appellant believed that the Respondent Nos.1, 3 and 5 had clear title to the suit property. After the agreement was entered into, the concerned Respondents informed the Appellant that the property was mortgaged to the Madgaon Urban Cooperative Bank Limited as security for the repayment of a loan taken by them. They, however, assured the Appellant that there were no other encumbrances and that they would, within a period of one month, get the property cleared of the said encumbrance and complete the sale. Despite repeated requests, the concerned Respondents failed to complete the sale as per the agreement. 7(A). The Appellant, by a letter dated 7th December, 1985, called upon Respondent Nos.1 to 6 to complete the sale. The Appellant also forwarded a draft of the conveyance deed on 3rd May, 1986. (B) Respondent No.1, by his letter dated 3rd April, 1987, informed 11 the Appellant that he was helpless in the matter and could not complete the sale due to the claim raised by his sister Respondent No.7. He, therefore, enclosed therewith a bank draft in the sum of Rs.20,000/- towards refund of a part of the initial deposit of Rs.50,000/- and promised to remit the balance as early as possible. The Appellant, by his advocate’s notices dated 8th April, 1987 / 15th April, 1987, once again demanded specific performance and returned the demand draft. The Appellant called upon the Respondent Nos.1 to 6 to finalize the draft conveyance and to complete the sale. (C) Respondent No.1, by a letter dated 20th April, 1987, stated that the execution of the sale deed was “obstructed by certain genuine difficulties” of which the appellant had been apprised. He further stated :- “However, we are thinking how to go ahead with the execution of the sale deed.” He stated that he would send a detailed reply in about a fortnight. He, however, did not do so. 8(A) Originally, the said bank was impleaded as Respondent No.7. By an amendment, the present Respondent No.7 i.e. the sister of Respondent Nos.1, 3 and 5 was impleaded. By the said amendment, her husband was impleaded as Respondent No.8. Respondent No.9, 12 Syscon Consultants Private Limited was also impleaded by an amendment as Respondent No.7 and 8 had purported to transfer the suit property to Respondent No.9. The suit was amended extensively to implead Respondent Nos.7, 8 and 9 and seek various reliefs against them. (B) The Appellant’s case in this regard is that Respondent Nos.1, 3 and 5 in collusion with each other commenced inventory proceedings of the family property in the court of Civil Judge, Senior Division being inventory proceedings No.55/90/A and collusively arranged to accept the bid of Respondent No.7 for the suit property at a private auction held on 1st December, 1990. By an order dated 30th January, 1991, passed in the inventory proceedings, the suit property was allotted to Respondent No.7. Based on this, Respondent Nos.1 to 6 contended that the suit agreement could no longer be performed as the property no longer belonged to them, but vested in Respondent No.7. (C). The Appellant, therefore, filed Special Civil Suit No.329 of 1992 in the same court on 27th October, 1992 for a declaration that the said order dated 30th January, 1991in the inventory proceedings was vitiated by fraud and illegality to the extent that it allotted the suit 13 property to Respondent No.7 and praying that the said allotment be set aside. The amendment to the suit in which the impugned order was passed encompasses the reliefs claimed in Special Civil Suit No.329 of 1992. This judgment will, therefore, conclude Special Civil Suit No.329 of 1992 as well. 9(A). The Appellant had issued a public notice with respect to the suit agreement. In response thereto, the said bank disclosed the facts regarding the said mortgage viz that it had obtained an award in respect of the said loan and that the liability thereunder was of about Rs.17,00,000/-. (B) The bank sought to have the property auctioned through the executing authority namely Assistant Registrar, Co-operative Societies, South Zone, Margao. (C) The Appellant filed proceedings to stay the execution. It is not necessary to refer to those proceedings. Not having obtained any interim reliefs, the Appellant, to protect the property, sought to deposit 14 the amount in the executing court. This application was opposed by Respondent Nos.7 and 8. The Appellant deposited the sum of Rs. 17,00,000/- on 12th May, 1993. The Assistant Registrar, by an order dated 19th January, 1994, ordered the adjustment of the said amount against the bank’s claim and further ordered the release of the lien on the property on account of the mortgage/attachment. Respondent No.7 and 8 challenged the order by filing Writ Petition No.277 of 1994. The High Court, by an order and judgment dated 10th October, 1994, maintained the said order and Respondent Nos.7 and 8 were held to be at liberty to pursue their rights in accordance with law. 10. The Appellant filed the suit on 16th May, 1987. 11. On 4th February, 1994, the Appellant registered notice of lis pendens No.30 of 1994 in the office of the Sub-Registrar at Canacona mentioning the pendency of Special Civil Suit No.329 of 1992. On 8th February, 1994, the Appellant issued a notice to Respondents No.1 to 8 about the said lis pendens. 12(A). On 19th September, 1994, the Appellant applied for a 15 certified copy of the survey record in Form No.I to XIV in respect of the suit property. On receiving the same, the Appellant noted that the name of Respondent No.1 was deleted from the occupant’s column and the names of Respondent Nos.7 and 8 were added as occupants, presumably on the basis of the order passed in the inventory proceedings. (B). The Appellant thereafter, on 2nd December, 1997, obtained a certified copy of the survey records to ascertain whether the lis pendens was recorded. The Appellant found that the name of Respondent Nos.7 and 8 were put in brackets and the name of the Respondent No.9 was registered in the occupant’s column. According to the Appellant, the Respondent Nos.7 and 8 had illegally and fraudulently and in collusion with Respondent Nos.1 to 6 sold the property to Respondent No.9 by a sale deed dated 14th November, 1985 for a consideration of Rs.34,00,000/-. The said sale deed was registered on 16th November, 1995 at the office of the Sub-Registrar of Canacona. According to the Appellant, Respondent No.9 was aware of all the facts regarding its rights as claimed in this suit and otherwise. This, in fact, is admitted by the Respondent No.9. On a 16 visit to the property on 12th April, 1998, the Appellant found some huts having been erected, meant for the construction labour. 13. The Appellant filed Civil Application No.65 of 2010 in the present Appeal seeking an amendment by adding paragraph 18A to the plaint. The Appellant submitted that without prejudice and in the alternative and in the event of this court holding that the Plaintiff is not entitled specific performance of the entire suit property, Respondent Nos.1 to 6 be ordered and directed to specifically perform the said contract dated 4th September, 1985 to the extent of their shares in the suit property as provided in section 12(3) of the Specific Relief Act, 1953. The Appellant stated that it is ready and willing to pay the consideration of the whole contract without any abatement and to relinquish all claims to the performance of the remaining part of the contract and all rights to compensation, either for deficiency or for loss or damage sustained by it due to the default of Respondent Nos.1 to 6 or any of them. The Appellant also sought to add prayers claiming reliefs accordingly. Mr. Zaiwala stated that the Appellant did not wish to lead any further evidence in support of this plea. Nor did the Respondents seek to adduce any evidence in this regard. 17 14. The amendment ought to be allowed. Firstly, as noted above, no further evidence is sought to be led by any of the parties. Indeed, no further evidence is required. If the amendment is allowed, the Respondents will not be prejudiced in any manner whatsoever. It is a concession made by the Appellant under section 12(3) of the Specific Relief Act. Mr. Zaiwala rightly submitted that mere delay in filing such an amendment would make no difference. Mr. Zaiwala’s reliance upon the judgment of the Supreme Court in the case of Surinder Singh vs. Kapoor Singh (2005) 5 SCC 142 is well founded. A bench of three learned Judges of the Supreme Court held as follows :- “8. Section 12(3) of the Act is a beneficial provision so far as the purchasers are concerned. In the instant case, in view of the findings of fact arrived at by the High Court, the decree for specific performance of contract in respect of the entire suit land could not have been granted as the appellant therein was not authorised by his sister to enter into the agreement for sale. The relinquishment of claim as contemplated under Section 12(3)(ii) of the Act as regards performance of the remaining part of the contract and all rights to compensation need not specifically be pleaded and can be made at any stage of the litigation. Such a plea can also be raised at the appellate stage. Delay by itself, it is trite, may not stand in the way of the plaintiff claiming the relief unless the defendant 18 establishes prejudice. ............................... 12. Kartar Singh was rendered in the fact situation ob- taining therein. The observations therein to the effect that the provision of Section 12 was not applicable came to be made in view of the finding that the sister of the re- spondent had not entered into any contract at all. In this case, however, the appellant herein had entered into the aforementioned agreement for sale on the premise that he had the requisite authority to do so on behalf of his sister as also on his own behalf. The sister of the appellant denied or disputed such authority and in that view of the matter, it is beyond any pale of doubt that the agreement for sale was entered into in respect of the entire suit land and having regard to the fact that the sister of the appel- lant did not authorise him to enter into the said agree- ment, sub-section (3) of Section 12 of the Act would clearly be attracted. Kartar Singh should not be held to lay down a law to the effect that even in a case where a part of the contract is held to be invalid, Section 12 will have no application. 13. The question which deserves consideration now is as to whether the application for amendment of the plaint filed by the plaintiff-respondents should be allowed. Sub-section (3) of Section 12 does not lay down any limitation for filing such an application. Such an application can be filed at any stage of the proceedings and in that view of the matter an application even before this Court would be maintainable. 14. In Kalyanpur Lime Works Ltd. v. State of Bihar this Court has held: (SCR p.974) “The last portion of the application, however, leaves no doubt whatever that all claims to further performance were relinquished and compensation prior to 1-4-1948, was also given up. The plaintiff’s learned counsel has asked for that relief in the course of his arguments and he has made it clear that he insists on no further performance, nor does he claim any compensation for any period prior to the execution of the leases. Relinquishment of the claim to further performance can be made at any stage of the litigation.” 19 15. A Division Bench of the Patna High Court in Girdhar Das Anandji v. Jivaraj Madhavji Patel in an identical situation, referring to the decision of this Court in Kalyanpur Lime Works Ltd. held: (Pat LJR p.84, para 27) “I have already stated that learned Advocate General while opening the case of his client specifically stated that he was giving up the cross-objection and that he was relinquishing claim for further performance and for com- pensation, etc. as required under Section 15 of the Specific Relief Act, 1877. The relinquishment as re- quired by law, having been made in this Court the plaintiff-respondent could not be non-suited on this ground.” 16. In view of the legal position and also in view of the statement made across the Bar including the application for amendment of the plaint filed on behalf