LexSYSCON CONSULTANTS P. LTD. versus M/S. PRIMELLA SANITARY PROD. P. LTD. AND OTHERS
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A B c D E F G H [2016) 6 S.C.R. 456 SYSCON CONSULTANTS P. LTD. v. M/S. PRIMELLA SANITARY PROD. P. LTD. AND OTHERS (Civil Appeal No. 2910 of2013) SEPTEMBER 19, 2016 [KURIAN JOSEPH AND R.F. NARIMAN, JJ.] Specific Performance - Sale agreement - By defendant Nos. 1 to 6 with the plaintiff - Claiming to be absolute owners of the property in question and concealing the fact that the property was mortgaged with Bank and there was another heir (their sister) - However, the defendants 1 to 6 had agreed to give clear title to the plaintiff - Advance paid by the plaintiff - Thereafter defendants 1 to 6 communicated to the plaintiff their inability to sell the property as their sister claimed pre-emptive rights - Plaint(ff filed suit (suit No. 8811987) for specific performance of the contract - The sister and her husband also filed suit for declaration and injunction (Suit No. 10511987) in respect of suit property as well as other properties, against defendant Nos. 1 to 6 and the plaintiff - In recovery proceedings by the mortgagee Bank, the distress sale of the suit property was averted on plaintiff repaying the loan amount on the request of defendant Nos. 1 to 6 - Mortgage was redeemed - The sister initiated inventory proceedings for division of the property including suit property - Jn the inventory proceeding the court was not informed about the pending suit, nor the plaintiff was informed about the same - In the inventory proceedings sister and her husband obtained suit property - Writ petition by the sister challenging the proceedings of the Asstt. Registrar culminating in redemption of mortgage - Petition disposed of by High Court giving liberty to pursue their rights as per law - Plaintiff thereafter amended the suit (8811987) impleading sister and her husband as additional defendants (as defendant Nos. 7 and 8), also challenging inventory proceedings and sought compensation - Defendant Nos. 7 and 8 sold their property to defendant No. 9 - Trial court dismissed the suit of plaintiff and upheld the rights of defendant Nos. 7 and 8 - High Court decreed the suit to the extent of the share of defendant Nos. 1 to 6 - Appeal by the plaintiff, by the defendant Nos. 1 to 8 456 SYSCON CONSULTANTS P. LTD. v. M/S. PRIMELLA SANITARY PROD. P. LTD. AND OTHERS and also by the purchaser of the property i.e. defendant No. 9 - Held: In view of the conduct of the parties, it is not a fit case to exercise discretionwy jurisdiction u/Art. 136 of Constitution - The plaintiff had throughout .been readft;and willing to perform its obligations under the agreement to sell - In view of the nature of the property, monetary compensation would not be an adequate alternative to specific performance - The plaintiff went to the extent of discharging the mortgage by paying a sum which was almost three times the amount of sale consideration - Defendant Nos. I to 8 had already given up on their rights in the suit property by not taking steps to avoid the distress sale at the instance of the Bank - Defendant Nos. 1 to 6 also failed to ·complete the sale even after clear title was made out, i.e. when the obstacle of mortgage was removed - The agreement became enforceable after clear title was made out - Even if undivided share of one of the other heirs of the property cannot be transferred, the remaining share of other heirs can be transferred - Art. 2177 of Portuguese Civil Code, 1867 does not prohibit alienation of undivided interest - No injustice is caused to defendant No. 9 eithe1~ as he purchased the property under litigation being fully aware of the same - Portuguese Civil Code, I867 -Art. 2177 - Constitution of India -Art. 136. Dismissing tbe appeals, the Court HELD: l. The suit property, no doubt is jointly owned by Defendants 1 to 8. But the agreement for sale was only by the Defendants 1 to 6. They not only excluded the sister and her husband but made two deliberate and wrong representations: that Defendants 1, 3 and 5 are the only children and that the suit property was the only estate left by their parents. [Para 40) [477- B-C) '· 2. Fully conscious of the fact that there was another heir namely the sister and that the property had already been mortgaged to the Cooperative Bank, a very significant clause was incorporated in the agreement to the effect that the vendors could execute a proper conveyance in favour of the purchasers and in that regard, the vendors would ma
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