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Specific Relief Act, 1963

By : Member (Account Deleted) on 29 October 2009 Report Abuse Print Print this
 



Specific relief Act, 1963

Chapter I

Introduction

 

Specific Relief Act was enacted in 1877. The Act was originally drafted upon the lines of the Draft, New York Civil Code, 1862, and its main provisions embodied the doctrines evolved by the English Equity Courts. The Specific Relief Act, 1963 is the outcome of the acceptance by the Central Government on the recommendations made by the Law Commission of India. A bill to repeal the Act of 1877 was introduced in Lok Sabha and was passed by the both the houses of Parliament and on 13th December, 1963 the President assented to the same.

The Specific Relief Act provides for specific reliefs. Specific relief means relief of certain species, i.e. an exact or particular, a named, fixed or determined relief. The term is generally understood and providing relief of a specific kind rather than a general relief or damages or compensation. It is a remedy which aims at the exact fulfillment of an obligation or specific performance of the contract. For instance if some body unlawfully dispossesses me of my property, the general relief may be requiring the defendant to pay me compensation equivalent to the loss suffered by me due to dispossession. Specific relief may enable me to have the possession of the same property over again by requiring the defendant to restore possession of my property. Specific performance is generally granted when there exist no standard for ascertaining actual damages, for instance the object of the sale is picture by the dead painter, or where compensation in money will not provide adequate relief to the plaintiff.

 

The Specific Relief Act, 1963 extends to the whole of India, except the State of Jammu and Kashmir. The Specific Relief Act deals only with certain kinds of equitable reliefs and these are now:

i)             Recovery of  possession of property

ii)           Specific Performance of contracts

iii)          Rectification of Instruments

iv)          Rescission of Contracts

v)            Cancellation of instruments

vi)          Declaratory decrees

vii)         Injunctions

The other forms of Specific relief mentioned in the Code of Civil Procedure and in statutes such as Transfer of Property Act, Trust Act, and Partnership Act are different in origin and nature and are not included in this Act. The cases of Contract are governed by the statutory provisions contained in the Indian Contract Act, 1872 and the provisions of the Specific Relief Act do not apply to such cases.                                              


 


Chapter II

OBJECT AND SCOPE

The object of the Act may best be stated in the words of Statement of Object and Reasons which runs as under:-

“This Bill seeks to implement the recommendation of the Law Commission contained in its Ninth Report on the Specific Relief Act, 1877, except in regard to Section 42 which is being retained as it now stands. An earlier Bill on the subject introduced in the Lok Sabha on the 23rd December, 1960, lapsed on its dissolution. The notes on clauses extracted from the Report of the Law Commission, explain the changes made in the existing Act.”

The object of the Specific Relief Act is confined to that class of remedies which a suitor seeks to obtain and a Court of justice seeks to give him the very relief to which he is entitled. The Law of Specific Relief seeks to implement the idea of Bentham who said: “The law ought to assure me everything which is mine, without forcing me to accept equivalents, although I have no particular objection to them.”

          The Specific Relief Act, 1962 embodies what is essence is adjective law and the substantial law must be looked for elsewhere. The Law of Specific Relief is in its essence, a part of the law of procedure, for Specific Relief is a form of judicial redress. This Act provides law with respect to various reliefs which can be granted under its provisions. It does not deal with the remaining remedies, which are connected with compensatory relief except incidentally and to the limited extent to which it is either supplementary for alternative to Specific Relief. The expression ‘Specific Relief’ means a relief in specie. It is a remedy which aims at the exact fulfillment of an obligation. The expression ‘Specific Relief’ is used in contract to compensatory relief. In executor contracts, a suit may be brought to compel the performance of the contract by the person in default. Such relief may be either positive or negative. It is positive when a claim to the performance of it and negative when it is desired to prevent the doing of thing enjoined or under taken as not to be done.

          The Specific Relief Act explains and enunciates the various reliefs which can be granted under its provisions, provides the law with respect to them. It provides for the exact fulfillment of the obligation or the specific performance of contract. It is directed to the obtaining of the very thing which a person is deprived of and ought to be entitled to ask for. It is remedy which a person is deprived of and ought to be entitled to ask for. It is a remedy by which party to a contract is compelled do or omits the very acts which he has undertaken to do or omit. The remedies which has been administered by Civil Courts of Justice against any wrong or injury fall broadly into two classes; (i) those by which the suitor obtains the very thing to which he is entitled, and (ii) those by which he obtains not that very thing, but compensation for the loss of it. The former is the specific relief. Thus specific relief is a remedy which aims at the exact fulfillment of an obligation. It is remedial when the court directs the specific performance of contract and protective when the court makes a declaration or grants an injunction.


 


 

Chapter III

RECOVERY OF POSSESSION OF PROPERTY

Recovery of Possession is dealt with in Sections 5 to 8 of Chapter II of the Specific Relief Act. Here property may be immovable property or movable property, act provides for the recovery of the property. Section 5 and Section 6 deals with the immovable property and Section 7 and Section 8 deals with the movable property.

RECOVERY OF IMMOVABLE PROPERY

 

Section 5. -- Recovery of specific immovable property

Section 5 of the Specific Relief Act deals with the recovery of specific immovable property.-

A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).”

The section in simple words provides that any person who is lawful owner of immovable property can get the possession of such property by due course of law. It means that when a person is entitled to the possession of specific immovable property he can recover the same by filling the suit as per provisions of CPC. He may file suit for ejectment on the strength of his title and can get a decree for ejectment on the basis of title within 12 years of the date of possession. Section 5 of the Act declares that in a suit for the recovery of immovable property by person ‘entitled to’ provisions Order XXI, Rules 35 and 36 of CPC would apply. There are three types of actions which can be brought in law for the recovery of specific immovable property:

(i).  a suit  based on title by ownership;

(ii).      a suit based on possessory title; and

(iii).    a suit based merely on the previous possession of the plaintiff, where he has been dispossessed without his consent, otherwise than in due course of law.

The last remedy is provided in Section 6 of the Act. The suits of the first two types can be filed under the provisions of the Civil Procedure Code.

          The word ‘entitled to possession’ means having a legal right to title to possession on the basis of ownership of which the claimant has been dispossessed.[1] Plaintiff must show that he had possession before the alleged trespasser got possession. In Ismail Ariff v. Mohammed Ghouse, the Privy Council held, “the possession of the plaintiff was sufficient evidence as title of owner against the defendant by Section 6 of Specific Relief Act, if the plaintiff had been dispossessed otherwise than in due course of law.” There may be title by contract, inheritance, and prescription or even by possession and the last will prevail where no preferable title is shown.

Section 6. – Suit by person dispossessed of immovable property.

Section 6 of the act deals with the suit by person dispossessed of immovable property.-

(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought- (a) after the expiry of six months from the date of dispossession; or (b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

          The main object of Section 6 is to discourage forcible dispossession on the principle that disputed rights are to be decided by due process of law and no one should be allowed to take law into his own hands, however good his title may be. The operation of Section is not excluded in cases between landlords and tenants where there is no question of title involved.[2] The Section 6 provide summary and speedy remedy through the medium of Civil Court for the restoration of possession to a party dispossessed by another, within 6 months of its dispossession, leaving them to fight out the question of their respective titles in a competent Court if they are so advised.[3] The object of the Section has been beautifully summed up by Mittar,J. in Khojah Enaetoohal v. Kissen Saonder[4] The object of this Section appears to have been to give special remedy to the party illegally dispossessed by depriving the dispossessor of the privilege o f proving a better title to the land in dispute. Section 6 should be read as part of Limitation Act and its object to put an additional restraint upon illegal dispossession with a view to prevent the author of that dispossession, from getting rid of the operation of  the Act by his unlawful conduct. If the suit is brought within the period prescribed by that Section, even the right owner of the land is precluded from showing his title.

Requisites of Section 6:-

  1. Judicial possession of the plaintiff at the time of dispossession: The plaintiff must establish his judicial possession at the time of dispossession. Judicial possession is not equivalent to lawful possession. If a person has the possession of property as a fact and once he becomes settled as such, it is enough for the purpose of relief under Section 6, irrespective of his being without any right to the same or mere trespasser.[5] In

M.C. Batra v. Lakshmi Insurance Co. Ltd.[6]

Mootham, C.J. observed: “This section says nothing about the nature of possession enjoyed by the person dispossessed but it has been held in some cases that such possession must be what is called judicial possession, that is to say possession founded on some right.”

The possession must have been ‘juridical’ i.e. possession recognized by law. It should be neither by force nor by fraud. In Nayar Service Society Ltd v. K.C. Alexander[7], the Supreme Court has also expressed the same view and said that a trespasser has not right to disturb peaceful possession of long time of any person and cannot reap benefit of his illegal act.

  1. Dispossession of the plaintiff without his consent otherwise than in due course of law:- For the application of this section the dispossession must be without the consent of plaintiff[8] or against the process of and operation of law invoked by the ordinary method of Civil Court. In   

Rudrappa v. Narsingh Rao[9]

Court observed: “To read the words ‘due course of law’ as merely equivalent to the word ‘legally’ is, we think to deprive them of a force and significance which they carry on their face. For a thing which is practically legal may still by no means mean a thing done in due course of law.”

  1. The suit must be instituted within 6 months from the date of dispossession: - The Section 6 prescribes its own period of limitation for suits to be filed there under. In

T.T. Devasthanams v. K.M. Krishnaiah[10]

That where the suit for possession under Section 6 was filed by plaintiff with allegation of being dispossessed from property, beyond six months of dispossession. Such suit was held to be not maintainable, moreover when title of defendant was subsisting and not extinguished.

  1. Dispossession must be of ‘immovable property’: - The expression ‘immovable property’ means only such properties of which physical possession can be given under the Act and it does not cover incorporeal rights, since the incorporeal rights are not rights of which possession can be taken and delivered to the claimant.
  2. Dispossession has not been made by the Government, but by any other person
  3. Under this Section, an order or decree is final in the sense that it is not open to review or appeal, although it is subject to revision by High Court.

In Vanita M.Khanslkar V. Pragna M Pai[11] the question which had arisen before the Supreme Court was whether bar to an appeal from an order passed under Section 6(3) of the Specific Relief Act, 1963 was applicable to the a Letters Patent Appeal  from an order passed by a single judge to the division Bench of the high Court. It was held that bar to appeal and revision under Section 6(3) does not apply to letter Patent Appeal. While observing held that

“Now it is well settled that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions could not get excluded unless the statutory enactment concerned expressly excludes appeals under letter patent. No such bar is discernible from Section 6(3) of the Specific relief Act.”

Revision against the decree restoring possession was maintainable but only by way of exception and only if grounds within parameters of Section 115 of C.P.C. were clearly available. Where High Court had reversed decree of trail Court on basis of oral statement of two plaintiff’s witness, one sentence each from two depositions was extracted and set out by High Court for reversing such decree. Revision was not satisfactory disposed of as High Court had not looked into all material available on record and had also not indicated availability of grounds under Section 115 of C.P.C. As such order of High Court was set aside and revision was directed to be decided afresh.[12]

 

Distinguish b/w Section 5 and Section 6

 

SECTION 5

SECTION 6

  1.  

The plaintiff has to file a long-drawn regular suit for ejectment.

It gives a summary remedy.

  1.  

The claim is based on title.

The claim is based on possession and no proof of title is required and even rightful owner may be precluded from showing his title to the land.

  1.  

The period of limitation is 12 years.

The period of limitation is of only 6 months from the date of dispossession.

 

RECOVERY OF SPECIFIC MOVABLE PROPERTY

Section 7. -- Recovery of specific movable property.

A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).

Explanation 1.-A trustee may sue under this section for the possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled.  Explanation 2.-A special or temporary right to the present possession of movable property is sufficient to support a suit under this section.

Section 7 provides for the recovery of movable property in specie i.e. the things itself. The things to be recovered must be specific in the sense they are ascertained and capable of identification. The nature of things must continue without alteration. This section entitles a person to bring a regular suit for the recovery of possession of movable property if he has right to the same at the time of action for detenue. Suit can be filed under Order 20, Rule 10 of CPC and the form of the plaints are laid down in Schedule I and Appendix A of CPC. Where the Court decrees delivery of such property, the decree shall also state the amount of money to be paid in alternative, if delivery cannot be had.

State of Gujrat V. Biharilal[13]

There was agreement between Biharilal and occupants of land, in 1964 authorizing Biharilal to cut and remove trees standing on certain land, for period of two years. The forest authorities did not grant permission to cut and remove trees a period expired. There was no fresh agreement between the parties, nor was the period of authority in favour of Biharilal extended. Biharilal filed a suit for declaration of his right to cut and remove the trees and also for the necessary permission to do the needful. It was held that since the right in respect of the trees had already expired the suit filed by Biharilal could not be decreed.

Section 8. -- Liability of person in possession, not as owner, to deliver to persons entitled to immediate possession.

Any person having the possession or control of a particular article of movable property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession, in any of the following cases:-

(a) when the thing claimed is held by the defendant as the agent or trustee of the   plaintiff;

(b) when compensation in money would not afford the plaintiff adequate relief for  the loss of the thing claimed;

(c) when it would be extremely difficult to ascertain the actual damage caused by its loss;

(d) when the possession of the thing claimed has been wrongfully transferred from the plaintiff.

Explanation.- Unless and until the contrary is proved, the court shall, in respect of any article of movable property claimed under clause (b) or clause (c) of this section, presume-

(a) that compensation in money would not afford the plaintiff adequate relief for the loss   of the thing claimed, or, as the case may be;

 (b) that it would be extremely difficult to ascertain the actual damage caused by its loss.

          Section 8 of the Specific Relief Act which is analogous to the equitable relief of English law in an action of detenue entitles a person to recover the specific movable property itself from the defendant who is not the owner thereof in cases where the property has a peculiar value or association and cannot be adequately compensated in terms of money. The relief under this section can only be granted against a person having the possession control of the particular article claimed by the plaintiff. The object of this section is to provide special remedy so that persons having the possession or control of particular articles of movable property, although not their owners, may be compelled specifically to deliver them to the persons entitled to their immediate possession. Possession is foundation of that suit though a suit is not competent under this section against one who is the owner of the movable property. Possession and control of the defendant must therefore be clearly alleged in the plaint and proved.[14]

Requisites of Section 8: - In order that Section 8 may come into operation the following ingredient must exist:

1)   The defendant has possession or control of the particular article claimed;

2)   Such article is movable property;

3)   The defendant is not the owner of the article;

4)   The plaintiff is entitled to immediate possession; and

5)    Anyone of the condition laid down under clauses (a) to (d) of Section8 must exist.

Provisions of Section 8 are applicable in the following situations only:

                     I.        When such property is held as agent or trustee of the property.

                   II.        When compensation is not an adequate relief for the loss to the plaintiff.

                 III.        When ascertainment of actual damage is not possible.

                 IV.        When possession of the property is wrongfully transferred from the plaintiff.

In case of situations under I and II burden of proof is on the plaintiff and under III and IV burden is on the defendant.

Kizhakkumpurath V. Thanikkuzhiyil[15]

There was oral and documentary evidence that the plaintiff was the owner of certain scheduled items and the defendants had trespassed into those items. The plaintiff was held entitled to recover those items from the defendants, and also mesne profits or compensation as well.

 

Difference between Section 7 and section 8:

Section 7 and Section 8 both speak of the recovery of movable property. However the point of difference between two are:

  1. Relief under Section 7 is:

·         Of general nature

·         Independent of nature of property

·         Independent of relationship between the parties.

Relief under Section 8 is :

·         Of specific character

·         Depends upon the nature of property

·         Depends upon the relationship existing between the parties.

  1.  Relief claimed under Section 7 is for the possession of movable property and in alternate for compensation equal to the value of property whereas relief under Section 8 is for delivery of property (Specific movable property).
  2. Under Section 7 a suit to recover possession can be maintained against the owner of property. Section 8 does not contemplate a suit against the owner.

 

 

 

 

 

 


Chapter iV

SPECIFIC PERFORMANCE OF CONTRACTS

The contract is an agreement upon consideration to do or not to do particular thing, if the person on whom this contractual obligation rests, fails to discharge it, other party has right to either to insist on the literal and actual performance of the contract or to obtain compensation for the non-performance of it. The former is called the ‘Specific Performance.’

          According to Halsbury Specific performance is “an equitable relief given by the Courts in cases of breach of contract, in the form of a judgement that the defendant do actually perform the contract according to its terms and stipulation.”[16]

          According to Pomeroy defines it as “consisting in the contracting party’s exact fulfillment of obligation which he has assumed- in his doing or omitting the very act which he has undertaken to do or omit.”[17]

The subject of Specific performance is dealt in Part II, Chapter Ii of the Specific Relief Act, 1963 which may be classified under the following heads:-

  1. Contracts which my be specifically enforced;
  2. Contracts which cannot be specifically enforced;

C.   Parties to an action for specific performance

  1. Specific performance with a variation;
  2. Discretion of the Court in ordering specific performance;

Section 9. -- Defences respecting suits for relief based on contract.

Except as otherwise provided herein, where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts.

Section 9 simply declares that defendant may raise any ground available in law to him while resisting suit for specific performance. In other words all those pleas as recognized under law of contract like incapacity of parties, the absence of concluded contract[18], the uncertainty of the contract, coercion, fraud, misrepresentation, mistake, illegality or want of authority, to enter into contract etc are available to defendant in a suit for specific performance.

 

Contracts which may be specifically enforced

 

The remedy of Specific performance being an equitable remedy is at the discretion of the Court. But in the exercise of this discretion, the Court is governed by certain principles. The circumstances in which specific performance may be granted are enumerated in Section 10 of the very Act.

Section 10. -- Cases in which specific performance of contract enforceable

Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced-

(a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or

(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.

Explanation.-Unless and until the contrary is proved, the court shall presume-

(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and

(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:-

(a) Where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;

(b) Where the property is held by the defendant as the agent or trustee of the plaintiff.

No Standard for ascertaining damages

Section 10 providers for specific performance of contract in those cases where there is no standard for ascertaining damages or where the money cannot form adequate relief for the non-performance. Further enforcement of the specific performance is at discretion of the court and no one claim it as a matter of right. In

Banwari Lal Agarwala v. Ram Swarup Agarwala[19]

It was held that the plaintiff tenant was entitled to a decree of specific performance contract under Section 10 of Specific Relief Act. Where from some special or practical features or incidents of the contract either in its subject-matter, or in its terms or in the relations of the parties, it is impossible to arrive at a legal measure of damages at all, or at least with any sufficient degree of certainty so that not real compensation can be obtained by means of action at law, the contract will be enforced in specie.

Pecuniary compensation not adequate relief

The specific performance will also be granted when compensation in money is not adequate relief in facts and circumstances of case. Damages may be considered to be an inadequate remedy if it is difficult to quantify them. In Jainarain v. Surajmal[20]  it was held that where shares are limited in number and are not ordinarily available in the market, it is quite proper to grant decree for specific performance of contract of sale of such shares. In Ram Karan V. Govind Lal[21] there was an agreement for the sale of agricultural land. The buyer had paid full sale consideration to the seller, but the seller even then avoided executing the sale deed as per the agreement. The buyer brought an action for the specific performance of the contract. It was held that the case is covered under Section 10(b) of the act.

Conditions for applicability of Section 10: -

  1. The suit must relate to the specific performance of contract;
  2. The case must fall within any of the Clauses (a) and (b);
  3. The case must in the discretion of the court, be fit one to warrant specific performance; and
  4. The case must not fall within any of the Section of Chapter II which prohibits specific performance.

Explanation to Section 10 carries presumption in favour of plaintiff and declares that it should be presumed that compensation does not afford adequate relief in following cases:

  1. In all cases where the contract is for the transfer of immovable property.
  2. In case of movable property where:

a)    The property is not  an ordinary article but an article of special value or of special interest to plaintiff.

b)   The article is not easily obtainable in the market.

c)    The property is held by the defendant as an agent or trustee of the plaintiff.

However these presumptions canbe rebutted by the defendant by proving the contrary.

Doctrine of Mutuality:

No person can sue for specific performance if he cannot be sued for it, whether because he is minor or for any other reason. The contract to be specifically enforced must be mutual. The doctrine of mutuality means the contract must be mutually enforceable by each party against the other. It does not however mean that for every right there must be corresponding clause. A contract may contain series of clauses and covenants which form the total bargain between the parties and each of them is the consideration for the other. Mutuality in this context does not mean equality and exact arithmetical correspondence. It means each party to the contract must have the freedom to enforce his right under the contract against each other.[22] The doctrine of mutuality though a technical on is founded on common sense and amounts to this that the party to the contract should not be bound to that contract ,when he could not enforce it against the other. In India the contract by a minor himself is absolutely void.[23]

Section 11. Cases in which specific performance of contracts connected with trusts enforceable.-

(1) Except as otherwise provided in this Act, specific performance of a contract may, in the discretion of the court, be enforced when the act agreed to be done is in the performance wholly or partly of a trust.

(2) A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically enforced.

According to Section 11(1) when the act agreed to be done is in the performance, wholly or partly, of a trust, specific performance of the same may be granted at the discretion of the court. For instance A holds certain stock in trust for B. A wrongfully disposes of the stock. The law creates an obligation on A to restore the same quantity of stock to B, and B may enforce specific performance of this obligation.

Specific performance of part of contract

Section 12. Specific performance of part of contract.-

 (1) Except as otherwise hereinafter provided in this section, the court shall not direct the specific performance of a part of a contract.

(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.

(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either- (a) forms a considerable part of the whole, though admiting of compensation in money; or (b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party-

 (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b), 1*[pays or has paid] the consideration for the whole of the contract without any abatement; and

(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.

(4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.

 Explanation.-For the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject-matter existing at the date of the contract has ceased to exist at the time of its performance.

The general rule of equity is that the court will not compel specific performance of a contract unless it can enforce the whole contract. In

Merchants Trading Co. v. Banner[24]

Lord Romilly observed that: “this court cannot specifically perform the contract piecemeal, but it must be performed in it’s entirely if performed at all.” A court of equity is not concerned to make the new contract for the parties.

The rule laid in above case is contained in Section 12(1) of the Specific Relief Act which lays court shall not direct the specific performance of a part of contract, except in cases coming under on or other of the three proceeding sections.

          To this general rules there are certain exceptions which proceed upon the principle of that ‘equity looks to the substance of contract and requires substantial compliance with its conditions rather than its literal fulfillment’ and these are embodied in Section 12 (2), (3) and (4).

Section 12(2) becomes applicable when the part of contract which cannot be performed is the conveyance of an item which is only a small portion of the whole in value and admits of compensation in money. The inability to perform the contract may be by reason of deficiency in quantity of the subject-matter, variance in quality, defect in title or of some other legal prohibition or lapse of time. For the applicability of these provisions of this sub-section two conditions must co-exist, namely:

a)    That the part which must be left unperformed bears only a small proportion to the whole value, and

b)   The part which must be left unperformed admits of compensation in money.

Section 12(3) lays down the second exception the general rule under Section 12(1). The equitable principle underlying this section is that specific performance of contract will not be enforced for the benefit of the purchaser and cannot operate to his detriment. Following are the important points in this sub-section:

a)    The part unperformed must be a considerable portion of the whole; or

b)   It does not admit of compensation in money;

c)    Not either of the parties, but party who is not in default may sue for part performance.

d)   Provided the plaintiff relinquishes, (i) claims to further performance and also, (ii) all rights to compensation on account of default of the defendant.

Section 12(3) of the specific relief Act can be invoked only where terms of contract permit segregation of rights and interest of parties in the property. The provision cannot be availed of when the terms of the contract specifically even an intention contrary to segregating interest of the vendor having the interest and spes successionis of revesioners. Neither law nor equity is in favour of the vendee to grant specific performance of the contract.[25]

Section 12(4) is the third exception to the general law provided in sub-section 12(1). The ordinary presumption is that a contract is intended to be dealt with as a whole and not piecemeal. But this section permits the Court in certain cases where this presumption is rebutted to afford relief by way of partial performance. The basic principle of Section 12(4) is that when a contract consists of several parts which are separate from and independent of on another, and some of which cannot or ought not to be performed, such part or parts as can and ought to be performed may alone be specifically enforced. The court must not make a new contract for the parties, nor proceed merely on surmises that the requirements of the section would be satisfied, if further enquiry were allowed.[26]

Section 13. Rights of purchaser or lessee against person with no title or imperfect title.

(1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely:-

(a) if the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;

(b) where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of  the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance;

(c) where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and, where necessary, also a conveyance from the mortgagee;

(d) where the vendor or lessor sues for specific performance of the contract and the suit is dismissed on the ground of his want of title or imperfect title, the defendant has a right to a return of his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest, if any, of the vendor or lessor in the property which is the subject-matter of the contract.

(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.

This section is based on the extended principle what is known in English Law the doctrine of feeding the grant by estoppels. This doctrine found acceptance in India, in the form of Section 43 of Transfer of property Act. It is has been extended in the present Section 13 of the Specific Relief Act. The right of the person of purchaser or lessee against the person with no title or imperfect title has been enumerated in Section 13 of the Specific Relief Act.

          A contract may be specifically enforced even though the promisor had no title or imperfect title at the time of the contract. The promisor is bound to comply with the terms of the contract if he subsequently acquires the power of performing the contract. The promisee can compel the promisor to make good the contract out of the interest which the latter acquired subsequent to the contract.[27] Section 13(a) says about above right of vendee.

There is distinction between Section 43 of T.P Act and Section 13 of Specific Relief Act:-

·         Section 13 of the S.R. Act applies only where the matter is still in the stage of contract. It has no application to cases where an actual transfer has been made in respect of the property to which vendor or lessor has no title or has only an imperfect title.]

·         Section13 of S.R. Act applies to contract for sale or lease of immovable property and contracts for sale or hire of movable property which is in existence. It does not apply to those properties which are no in existence. It does not apply to those properties which are not in evidence; on the other hand, Section 43 of T.P. Act applies to transfer of immovable property while it has no application to movable properties.

·         Section 13 of S.R. Act applies to contract for sale, lease or hire properties, movable or immovable, while Section 43 of T.P. Act applies to transfer which include within their ambit not only sales and lease but also mortgages, charges or other transfers for valuable consideration.

Contracts not specifically enforceable

Section 14. Contracts not specifically enforceable.-

(1) The following contracts cannot be specifically enforced, namely:--

 (a) a contract for the non-performance of which compensation in money is an adequate relief;

(b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;

 (c) a contract which is in its nature determinable;

(d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.

(2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.

(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), the court may enforce specific performance in the following cases:-

(a) where the suit is for the enforcement of a contract,-

(i) to execute a mortgage or furnish any other security for security for securing the  repayment of any loan which the borrower is not willing to repay at once:

Provided that where only a part of the loan has been advanced the lender is willing to advance the remaining part of the loan in terms of the contract; or

(ii) to take up and pay for any debentures of a company;

(b) where the suit is for,-

 (i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or

(ii) the purchase of a share of a partner in a firm,

(c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land:

 Provided that the following conditions are fulfilled, namely:-

(i)             the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;

(ii)           the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and

(iii)          the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.

The effect of the provisions in Section 14 can be stated in terms of certain propositions, namely, that in the case of following contracts the relief of Specific performance cannot be allowed:

1.   Where Compensation is Adequate.

Courts will not order specific performance of a contract where the aggrieved party can be adequately compensated in terms of money. An ordinary contract to lend or borrow money whether with or without security is an example of a contract which cannot be specifically enforced, though where a loan has been already advanced on the understanding that a security would be provided against it, this can be specifically enforced.[28]

2.   Contracts involving personal skill

It is not possible for the court to supervise the performance of a contract which runs into minute and numerous details or is dependent upon the personal qualifications of the promisor or is otherwise of volitional nature. Contracts of employment, contracts of personal service, contracts involving performance of artistic skill, like contract to sing, to paint, to act, contract of authorship are ordinary examples of things requiring personal skill and therefore beyond the capacity of the judicial process to enforce their actual performance. The only choice in such cases is to be content with damages.[29] In Purshottam V. Purshottam[30]  it was held that a contract to marry would fall under the category of such contracts fro which a court cannot enforce the specific performance.

3.   Contracts of Determinable Nature.

Specific performance is not ordered of a contract which is in its nature determinable. Thus no order of specific performance is likely to be passed when the contract is revocable at the option of the opposite party. A revocable lease comes under this category.[31] The court will not enforce a contract which is in its nature revocable by the defendant , for its interference in such case would be idle in as much as what it had done might be instantly undone by one of the parties.In

Jawahar Sao V. Shatrughan Sonar[32]

It has been held that wher a contract of sale is determinable at the option of the seller within a specified period on repayment of the consideration, the other party cannot get decree of specific performance of the agreement.

4.   Contracts requiring Constant Supervision

Clause (d) of Section 14(1) says that the contract cannot be specifically enforced where it involves the performance of continuous duty which the court cannot supervise. Contracts requiring the performance of a continuous duty extending over period longer than three years from the date of the contract cannot be specifically enforced. In the words of Dr. Banerji  “ If the court were to make what purported to be a final order for specific performance in such case, such order would not be the end of litigation; but on the contrary, it is fruitful and continuous source.” In

Central Bank yeotmal  V. Vyankatish[33]

The respondent-defendant was required to execute a Kabuliyat every year for 25 years and it was held there was continuous duty in the sense that it had to be performed annually for 25 years and, there fore, the contract must be held to be specifically unenforceable.

5.   Construction Contracts

Subject to certain exceptions, the court will not enforce specific performance to build, repair, or maintain works or building both because:-

a)      Specific performance is decreed only where the party wants the thing in specie and cannot have it in any other way; and

b)      Such contracts are for the most part so uncertain that the court will be unable to enforce its own decree.

In

Her Highness Maharani Shantidevi P. Gaikwak V. Savjibhai Haribahi Patel[34]

Supreme Court held that:-

There is also force in the contention that the agreement is not specifically enforceable in view of clause (d) of Sub-section (1) of Section 14 of the Specific Relief Act, 1963. This provision provides that a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise is not specifically enforceable. Having regard to the nature of the scheme and the facts and the circumstances of the case it is clear that the performance of the contract involves continuous supervision which is not possible for the court. After repeal such continuous supervision cannot be directed to be undertaken by the competent authority as such an authority is now non-existent.

Contract for Arbitration

Where an agreement of reference to an arbitration has been acted and determinate in an award a suit for the cancellation of the award on the ground of fraud and collusion isnot against the tenor of Section 14(2). This section has no application except where a person having made a contract to refer a controversy to arbitration has refused to perform it and institutes a suit in respect of subject matter in defiance of the contract, where two competent tribunal are available for the determination of a controversy viz :-

a)    The court

b)   The arbitrators

And the plaintiff chooses the latter while he has remedy to the former, it is not open to the defendant to enforce specific performance of the agreement of reference.

Parties to an action for specific performance

Section  15. Who may obtain specific performance.-

Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by-

(a) any party thereto;

(b) the representative in interest or the principal, of any party thereto:

Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest of his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party;

 (c) where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder;

 (d) where the contract has been entered into by a tenant for life in due exercise of a power, the remainder-man;

(e) a reversioner in possession, where the agreement is a covenant entered into with his predecessor in title and the reversioner is entitled to the benefit of such covenant;

(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner is entitled to the benefit thereof and will sustain material injury by reason of its breach;

 (g) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;

 (h) when the promoters of a company have, before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and has communicated such acceptance to the other party to the contract.

It is a general rule that a contract cannot be got enforced except by a party to the contract. This general rule is embodied in clause (a) of Section 15. But there are certain exceptions to this general rule. These exceptions are contained in clause (b) to (h) of the section and contain list of persons who although not a party to the contract, are entitled to obtain specific performance of contract. These are:

1)   A representative in interest or the principal thereto.

2)   Any person beneficially entitled

3)   The remainder man

4)   A revesioner in possession

5)    A  revesioner in remainder

6)    The amalgamated company

7)    The company

Other situation where contract can be enforced by any person other than the party thereto are where:

1)   A trust is created in favour of a stranger by the contract.

2)   The promisor constitutes himself as agent for the stranger.

3)   It is so provided by a marriage settlement

4)   The contract itself provides for maintenance

5)   The contract itself provides for marriage expenses.

6)   The aim of contract itself is to benefit a stranger.

7)   A change is created in favour of a stranger by the contract etc.

 

 

Shyam Singh, v. Daryao Singh[35]

Under the provisions of S. 15(b) specific performance of the contract may be obtained by 'any party thereto' or their representative in interest.' This expression clearly includes the transferees and assignees from the contracting party in whose favour the right exists. Such right of seeking specific performance would, however, be not available in terms of proviso below Cl. (b) where the contract provides that the 'interest shall not be assigned.

"T. M. Balakrishna Mudaliar v. M. Satyanarayana Rao"[36]

"In our view, generally speaking, the benefits of a contract of repurchase must be assignable, unless the terms of the contract are such as to show that the right of repurchase is personal to the vendor. In the latter case it will be for the person who pleads that the contract is not enforceable, to show that the intention of the parties thereto was that it was to be enforced only by the persons named therein and not by the assignee."

The plaintiff in the present case also falls within the meaning of representative in interest as contemplated under Cl. (b) of S. 15 of the Act. On such assignment, the plaintiff-appellant acquired a valid title to claim specific performance. In the result, we allow these appeals with costs and set aside the judgment of the High Court and restore the judgments and decrees passed by the trial court.

 

Section  16. Personal bars to relief.-

Specific performance of a contract cannot be enforced in favour of a person-

(a) who would not be entitled to recover compensation for its breach; or

(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation.-For the purposes of clause (c),-

(i)            where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii)           the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

In clause (a) Court of equity would refuse the specific performance not only for fraud but also for trickness for ‘he who comes for equity must come with clean hands.’ For example: A, in the character of agent for B, enters into agreement with C to buy C’s house. A is in reality acting not as agent for B, but of his own account. A cannot enforce specific performance of contract.

In clause (b) the incapacity may be physical or mental or even legal. The insolvency of the Judgement-debtor, however does not render a contract of assignment decree invalid. In

B.R. Mulani  V. Dr. A.B. Aswathanarayana and other[37]

It has been  held that where the plaintiff, pays mortgage debt created by defendant and the defendant in term agrees to sell certain property on its failure to pay off amount advanced, specific performance of such agreement cannot be ordered as it was not agreement of sale only. However, in this case Supreme Court decreed suit for repayment of money paid against mortgage with accrued interest.

If there is violation of essential terms of contract on his part then also relief is not granted.

In Clause (c) when a plaintiff in his suit for specific performance of the contract insists upon the implementation of the terms of the contract but on his own does not disclose his readiness and willingness to perform his own part of term, it was held in Ardeshir H. Mama V. Flora Sassoon[38] that such contract cannot be enforced. It is necessary for the party claiming specific performance to aver and prove that he has been all the time ready and willing to perform his part of contract.[39] In Sukhbir Singh V. Brij Pal[40] the fact that the party was present in the sub-registrar’s office with necessary funds was held to be a proof of the party’s readiness and willingness. The plea that the vendee did not show readiness and willingness can be taken by vendor only and not by subsequent buyer. Moreover the person who make himself party to an illegal contract cannot enforce his rights under this section.[41]

Section 17. Contract to sell or let property by one who has no title, not specifically enforceable.-

(1) A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor-

(a) who, knowing himself not to have any title to the property, has contracted to sell or let the property;

(b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.

(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.

Specific Performance with a variation

Section 18. Non-enforcement except with variation.-

Where a plaintiff seeks specific performance of a contract in writing, to which the defendant sets up a variation, the plaintiff 624 cannot obtain the performance sought, except with the variation so set up, in the following cases, namely:-

(a) where by fraud, mistake of fact or mis-representation, the written contract of which performance is sought is in its terms or effect different from what the parties agreed to, or does not contain all the terms agreed to between the parties on the basis of which the defendant entered into the contract;

 (b) where the object of the parties was to produce a certain legal result which the contract as framed is not calculated to produce;

 (c) where the parties have, subsequently to the execution of the contract, varied its terms.

Section 18 deals with cases in which the contract entered into is valid contract. In other words, it is one in respect of which the remedy of damages is available. Section 18 does not apply unless there is complete contract. It sets out the cases in which contracts cannot be enforced except with a variation and there are three particular cases set out in which a contract may be enforced subject to variation, such a variation being in favour of the defendant. But he remedy of specific performance is available when the plaintiff is prepared to accept the variation pleaded by the defendant.

Ingredient summarized:

a)    Contract in writing. The section does not apply unless there is a complete contract.

b)   Defendant sets up a variation.

c)    The plaintiff is put to an election either to have his action for specific performance dismissed or have it subject to such variation.

d)   But if plaintiff does not accept variation, he does not loose ordinary common law remedy of damages.

"K. Narendra v. Riviera Apartments (P) Ltd."[42]

When the defendant sets up a variation then the plaintiff may have the contract specifically performed subject to the variation so set up only in cases of fraud, mistake of fact or misrepresentation or where the contract has failed to produce a certain legal result which the contract was intended to do or where the parties have subsequent to the execution of the contract varied its terms.

Section 19. Relief against parties and persons claiming under them by subsequent title.- Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-

 (a) either party thereto;

(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;

 (c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;

(d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;

(e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract.

Clause (a)

In a suit for specific performance the parties to the contract are the sufficient parties. A stranger to the contract is not a proper or necessary party. In

Kasturi V. Jyyamperumal[43]

The apex Court held that third party or stranger to the contract cannot be added so as to convert a suit of one character into another character.

Clause (b)

Four things for the applicability of this clause must be there:

a)    The transfer is for value

b)   The consideration has been paid

c)    The subsequent transferee has taken the transfer in good faith

d)   Both the transfer and the payment of the consideration had been made without notice of the prior contract.

R.K. Mohammaed  Abidullah V. Haji C. Abul wahab[44]

The plaintiff who was in possession of certain property as a tenant and purchased the same property brought an action for specific performance. Subsequent purchaser contended that he was buyer in good faith and for consideration without notice and therefore he had a better title. It was found that the defendants i.e. subsequent purchasers, were aware of the fact that the plaintiff was in occupation of the property as tenant for several years. The defendants could not be said to be bonafide subsequent purchasers without notice of the suit property. Hence the plaintiff was held entitled to the relief of specific performance.

Clause (c)

This clause applies to cases where suit is not brought against the contracting party but against another whose title has been displaced by the former. In

Mohd. Hanif  V. Mariam Begum[45]

A sued B for specific performance of the contract of sale of house. He also sought possession from C who was not party to the contract. Held that decree for possession cannot be passed against C in this suit. The scope of a suit for specific performance of an agreement for sale of land coupled with a prayer for possession cannot be enlarged and the suit cannot be turned also in a title unless it comes under Section 19(c).

Clause (d)

The principle in this clause is that the amalgamated company is not allowed to exercise powers acquired by means of agreements with its component companies, except upon the terms of complying with those agreements provided they are such as the amalgamated company would itself have been bound by, if it had entered  into them.

Clause (e)

This Clause is not intended to apply to contracts to take share but only to contracts for the workings purposes of the company.

Discretion of the Court in ordering Specific Performance

It has been recognized on all hands that to decree specific performance is a matter of discretion of the court. But it doesnot means that it is open to the court to do just what it pleases in an individual case without regard to authority or principle.

Section 20. Discretion as to decreeing specific performance.-

 (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

(2) The following are cases in which the court may properly exercise discretion not to decree specific performance-

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

Explanation 1.-Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).

Explanation 2.-The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.

The section gives to the Court discretion in the matter of decreeing specific performance. This discretion is not arbitrary, but sound and reasonable, guided by the judicial principles. Under no circumstances, the court should exercise its discretion, where it would be improper. Mere on the ground that the contract is unenforceable court can’t refuse relief to any party. The discretion of the court is to decide whether enforcement of the contract in the present circumstances is fair and if the contract is fair and reasonable character of the plaintiff has been good then the discretion of the court has no application.[46] The court would grant specific performance on following general principles:

1)   Specific performance will not be granted where damages are an adequate remedy.

2)   To grant a specific performance of a contract is at the discretion of the court.

3)   The plaintiff must prove the following:

a)    That there was concluded and valid contract between him and the defendant.

b)   That he performed or is ready and willing to perform the terms of contract on his part

c)    That he was ready and willing to do all matters and things on his part thereafter to be done.

Noble Resources Ltd. v. State of Orissa"[47]

A specific performance of contract would not be enforced by issuing a writ of or in the nature of mandamus, particularly when keeping in view the provisions of the Specific Relief Act, 1963 damages may be an adequate remedy for breach of contract.

P. S. Ranakrishna Reddy v. M. K. Bhagyalakshmi[48]

The effect that having regard to the rise in price of an immovable property in Bangalore, the Court ought not to have exercised    its discretionary jurisdiction under Section 20 of the Specific Relief Act is stated to be rejected. We have noticed hereinbefore that the appellant had entered into an agreement for sale with others also. He had, even after 11.5.1979, received a sum of Rs. 5,000/- from the respondent. He with a view to defeat the lawful claim of respondent No. 1 had raised a plea of having executed a prior agreement for sale in respect of self-same property in favour of his son-in-law who had never claimed any right thereunder or filed a suit for specific performance of contract. The Courts below have categorically arrived at a finding that the said contention of the appellant was not acceptable. Rise in the price of an immovable property by itself is not a ground for refusal to enforce a lawful agreement of sale.

John Thomas V. Joseph Thomas[49]

There was sale of land at a stated price. There was no record to show that the value stated on the plaint was not correct. The suit for specific performance was resisted on the ground that the value of the property was understated to avoid stamp duty and taxes. It was held that specific performance could not be refused on the above ground.

Section 21. Power to award compensation in certain cases.-

(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. 626

(2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.

(3) If, in any such suit, the court decides that specific performance ought to be granted, but that is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.

(4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872).

(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. Explanation.-The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section.

The plaintiff in a suit for specific performance of contract, under Section 21 may also ask for compensation in case of the breach of the contract, either in addition to or in substitution for such performance but if the plaintiff in a suit for specific performance omits to ask for compensatory relief and his suit for specific performance is dismissed them his subsequent suit for compensatin will be barred by the provisions of Section 24. In Jagdish Singh V. Nathu Singh[50] the Supreme Court has held that when the plaintiff has made specific performance impossible, Section21 doesnot entitle him to seek damages. In Jaya Sen V. Sujit Kumar Sarkar[51] it has been held that the parties are bound by their pleadings and they can be awarded only such relief as is claimed in the plaint.

Section  22. Power to grant relief for possession, partition, refund of earnest money, etc.-

(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-

(a) possession, or partition and separate possession, of the property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1*[made by] him, in case his claim for specific performance is refused.

(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow  for "made to".  him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.

In P.C. Verghese V. Devaki Amma[52]  the apex court held  that in view of Section 22 (1)(a) of the Specific Relief Act a decree of partition and separate possession of the property can be granted in addition to a decree for specific performance.

In Satya Narayana V. Yelloji Rao[53] the Supreme Court has observed that discretion referred in Section 22 of the Specific Relief Act cannot be defined as it is not possible or desirable to lay down the circumstances under which the court will exercise discretion against the plaintiff, but at the same time the said discretion shall not be arbitrary and must be in accordance with sound and reasonable judicial principles.

Goparaju Venkata Bharata Rao V. Nagula Ramakotayya[54]

There was agreement for sale of property in favour of the plaintiff. The plaintiff was put in possession of suit property. The execution of the agreement was to take place after entire consideration was paid by the plaintiff. The original owner died. Her legatees under will dispossessed the plaintiff and postponed execution of sale deed. The plaintiff proved that the agreement to sell was a genuine document. It was held that the plaintiff was entitled to relief of specific performance of agreement possession of property against the legatees of the original owner property.

Section 23. Liquidation of damages not a bar to specific performance.-

(1) A contract, otherwise proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the court, having regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance.

(2) When enforcing specific performance under this section, the court shall not also decree payment of the sum so named in the contract.

Section  24. Bar of suit for compensation for breach after dismissal of suit for specific performance.- The dismissal of a suit for specific performance of a contract or part thereof shall bar the plaintiff's right to sue for compensation for the breach of such contract or part, as the case may be, but shall not bar his right to sue for any other relief to which he may be entitled, by reason of such breach.

It is open for the party to a contract to sue for its specific performance and for compensation for its breach in addition to or in substitution for such performance by the defendant. In those cases the plaintiff doesnot treat the contract to be at an end and asserts that he has been all along willing to performance his part of the contract. If the court grants him the specific performance, he will discharge his obligation. But in an action for damages only for breach of the contract, that cannot be the position there, the contract is taken to be no longer subsisting to be enforced.[55]

Section 25. Application of preceding sections to certain awards and testamentary directions to execute settlements.-The provisions of this Chapter as to contracts shall apply to awards to which the Arbitration Act, 1940 (10 of 1940), does not apply and to directions in a will or codicil to execute a particular settlement.


 

 

 

 

 

 

 

 

 

 

 

 

Chapter V

RECTIFICATION OF INSTRUMENTS

Section 26:- When instrument may be rectified.-

(1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles 628 of association of a company to which the Companies Act, 1956 (1 of 1956), applies) does not express their real intention, then-

(a) either party or his representative in interest may institute a suit to have the instrument rectified; or

(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or

(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.

(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.

(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.

(4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed: Provided that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim.

 

 

Doctrine of Rectification

Rectification means correction of an error in an instrument inorder to give effect to the real intention of the parties. Where a contract has been reduced into writing, in pursuance of a previous engagement and the writing, owning to fraud or mutual mistake, fails to express the real intention of the parties, the court will rectify the writing instrument in accordance with their true intent.” Here the fundamental assumption is that there exists in between the parties a complete and perfectly unobjectionable contract but the writing designed to embody it, either from fraud or mutual mistake is incorrect or imperfect and the relief sought is to rectify the writing so as to bring it into conformity with true intent. In such a case to enforce the instrument as its stand must be to injure atleast one party to it; to rescind it all together must be to injure both, but rectify it and then enforce it is to injure neither but to carry out the intention of both. In cases of rectification the court doesnot put it to the other party to submit to the variation alleged but makes the instrument confirmable to the intention of the parties without such offer or submission.[56] In Dagdu V. Bhana[57] it was observed:

“The Court in administering equitable principles permits mistakes to be proved where they are common; that is where the expression of the contract is contrary to the concurrent intention of the parties. If such mistakes be established, them the court can give relief of rectification, but what is rectified is not the agreement, but the mistaken expression of it.”

 

Who can apply for Rectification

The following persons may apply:-

a)    Either party or his representative in interest[58]

b)   The plaintiff in any suit

c)    A defendant in such suit

Conditions Necessary

The conditions necessary for obtaining rectification are:-

  1. There must have been a complete agreement reached prior to the written instrument which is sought to be rectified. There must be two distinct stages: i) an agreement, verbal or written, which clearly expresses the final intention of the parties, and ii) instrument which purports to embody that intention.
  2. Both the parties must have intended, and still intending, that the exact terms of the prior contract should be reduced to writing.[59]
  3. Clear evidence of Mistake common to both parties or of fraud.

The principle on which the court acts in correcting instruments is that the parties are to be placed in the position as that in which they would have stood if no error had been committed.[60]

 

Haji Abdul Rahman Allarakia V. The Bombay and Persia Steam Navigation Company[61]

The plaintiff chartered as steamer from the defendants to sail from Jedda on “10th August, 1892 (15 days after the Haj) in order to convey pilgrims returning to Bombay. The plaintiff believed that “10th August, 1892” corresponded with the fifteenth day after Haj. But the defendants had no belief on the subject, and contracted only with respect to the English date. The 19th July, 1892 and not 10th August,1892 corresponded with the fifteenth day after the Haj. On finding out the mistake, the plaintiff sued the defendants for rectification of the charter parts. It was held that the agreement was one for the 10th August, 1892 that the mistake was no mutual, but on the plaintiff’s part alone, and therefore, there could be no rectification. The court further expressed its opinion that even if both parties were under the mistake, the court would not rectify but only cancel the instrument as the agreement was one for the 10th August,1892 and that date was a matter materially inducing the agreement.


Chapter VI

DECLARATORY DECREES

Section 34. Discretion of court as to declaration of status or right.-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation.-A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.

A declaratory decree is a mode of relief where there is no specific performance and no award of compensation. There is only a declaration of rights of the parties without any consequential relief which can be enforced by the execution of the decree. In other words, declaratory decrees are those where some right is declared in favour of the plaintiff but nothing is sought to be paid or performed by the defendant. Further, the declaration does not confer any new rights upon the plaintiff; it merely declares what he had before.

Object

The object of such decrees is that where a person’s status or legal character has been denied or where a cloud has been cast upon his titles to rights and interests in some property, he may have the cloud removed by having his legal status or rights declared by the court. But it is not a matter of absolute right to obtain a declaratory decree. It is discretion of the Court. The object of Section 34 is to perpetuate and strengthen testimony regarding title and protect it from adverse attacks. The policy of legislature is not only to secure to a wronged party possession of the property taken away from him but also to see that he is allowed to enjoy that property peacefully.

Essential requisites for a declaratory action.

  1. The plaintiff must be entitled to any legal character or to any right as to any property.[62]
  2. The defendant should have denied or be interested in denying the character or title of the plaintiff. It is this denial which gives a cause of action for declaratory relief.
  3. The plaintiff is not in a position to claim further relief than mere declaration of his title, or where he is so able to seek further relief, he seeking such relief also.[63]

Section 35. Effect of declaration.-A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.

According to this section the declaratory decree is not binding on everybody in the world. It cannot bind strangers and as such a declaration will not operate as a judgement in rem[64] and will be binding only between parties to the suit and their representatives. Hence, a declaratory decree is binding between the parties inter se and its effect does not bind persons who are not connected with the suit in question.[65]


Chapter vII

INJUNCTIONS

An injunction is a specific order of the court forbidding the  commission of a wrong threatened or the continuance of a wrongful course of action already begun, or in some cases, when it is called mandatory injunction commanding active restitution of the former state of things. In Barney’s Encyclopedia of Laws of England it is defined as “a judicial process by which one, who has invaded or is threatening to invade the rights (legal or equitable) of another, is restrained form continuing or commencing such wrongful act.” Lord Halsbury is most explicit when he says: “An injunction is a judicial process where by a party is ordered to refrain from doing or to do a particular act or thing.”In former case it is called restrictive injunction and in the latter case it is called mandatory injunction.

Section 36. Preventive relief how granted.-Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.

Section 37. Temporary and perpetual injunctions.-

(1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908).

(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.

CHAPTER VIII PERPETUAL INJUNCTIONS

Section 38. Perpetual injunction when granted.-

(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. 633

(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:- (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Section 39. Mandatory injunctions.-When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

Section 40. Damages in lieu of, or in addition to, injunction.-

(1) The plaintiff in a suit for perpetual injunction under section 38, or mandatory injunction under section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages.

(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint: Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.

(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.

Section 41. Injunction when refused.-An injunction cannot be granted- (a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the 634 injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings; (b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought; (c) to restrain any person from applying to any legislative body; (d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter; (e) to prevent the breach of a contract the performance of which would not be specifically enforced; (f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance; (g) to prevent a continuing breach in which the plaintiff has acquiesced; (h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust; (i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court; (j) when the plaintiff has no personal interest in the matter.

Section 42. Injunction to perform negative agreement.- Notwithstanding anything contained in clause (e) of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement: Provided that the plaintiff has not failed to perform the contract so far as it is binding on him.

 



Chapter vIII

CONCLUSION

From the above discussion it can be concluded that the Specific Relief Act, 1963 provides for specific reliefs. Specific relief means relief of certain species, i.e. an exact or particular, a named, fixed or determined relief. The term is generally understood and providing relief of a specific kind rather than a general relief or damages or compensation. It is a remedy which aims at the exact fulfillment of an obligation or specific performance of the contract.

          Specific Relief, as a form of judicial redress, belongs to the law of procedure, and in a body of written law arranged according to natural affinities of the subject matter would find its place as a distinct part or other division of Civil Procedure Code.  It is in essence is adjective law and the substantial law. The expression Specific relief is used in contract to compensatory relief. In executor contracts, as suit may be brought to compel the performance of the contract by the person in default. Such relief may be positive or negative.

          Specific Relief Act explains and enunciates the various reliefs which can be granted under this provisions, provides the law with respect to them.

 

 



 

BOOKS REFERRED

 

S.No.

Name of book

Author

 

1.   The Specific Relief Act, 1963 ………………..…..Shailender Malik

2.   The Specific Relief Act, 1963 ……..…………………....Aqil Ahmed

3.   The Equity, Trust and Specific relief ……….………  M.P.Tandon

4.   Specific Relief Act…………..…………………….…………R.K. Bangia

 

 

Deepak Mehta

Ba.llb

Final year



[1] Kartar Singh v. Dayal Das; AIR 1939 PC 210

[2] Bai Dani  V.  A.G. Barot; AIR 1974 Guj. 106

[3] Wali Mohd. V.  Ajodhya Kunda; ILR 13 ALL 537

[4] 8 WR 386

[5] Yashwant Singh v/ Jagdish Singh Air 1968 SC 620; State of U.P. v. Maharaja Djarmender Prasad Singh AIR 1989 SC 997; Ram Rattan v. State of U.P. 1983 SCC 188

[6] AIR 1956 All 709

[7] AIR 1968 SC 1165

[8] Shree Onama Glass Works Ltd. v. Shri Ram Harak Pandey AIR 1966 MP 282; Sukhjeet Singh v. Sirajunnisa AIR 2001 MP 59 

[9] (1905) 29 Bombay 213

[10] AIR 1998 SC 1132; Smt. Amar Kaur v. Hardev Singh 1991 (2) P.L.R. 551

[11] AIR 1998 SC 424

[12] Sanjay kumar pandey V. Gulbahar sheikh, AIR 2004 SC 3354

[13] AIR 1999 SC 1999

[14] Jaldu Venkata Subba Rao v. Asiatic S.N. Co. ILR Mad 1 (FB)

[15] AIR 1998 ker 244

[16] Halsbury’s Laws of England, 2nd edtion, vol. 3

[17] Pomeroy’s Specific Performance of Contract, 3rd edition p. 447

[18] New mofussil co. v. Shankerlal Narayandas Mundade, AIR 1941 Bom. 247; J.I.J. Hyam v. M.E. Gubbay,AIR 1916 Cal. 1

[19] AIR 1998 Patna, page 88

[20] (1949) FLJ 216

[21] AIR 1999 Raj 167

[22] Dasarath Gayan v. Satyanarain Ghose, AIR 1963 Cal 325

[23] Mohri Bibi v. Dharmodas ILR 30 Cal 539

[24] 1871 (12) EQ 21

[25] Secretary, Communist Party of India  V.  Judhistra Patnaik, AIR 2004 Ori. 67

[26] William Graham v/ Krishna Chandra, AIR 1925 PC 45.

[27] Silla Chandre Sekharan v. Ramchadra Sahu,AIR 1964 Supreme Court 1789

[28] Meenakshisundara v. Rathnasami (1918) 41 Mad 959

[29] Gunpat Narain Singh Re(1876) 1Cal 74; Bansi Sah  v. Krishna Chandra AIR 1951 Punj. 508

[30] 21 Bom 33

[31] Oil and Natural Gas Corpn Ltd. V. Streamline Shipping Co. P. Ltd. AIR 2002 Bom 420

[32] AIR 1961 Pat 482

[33] AIR 1949 Nag 286

[34] (2001) 5 SCC 101

[35] AIR 2004 SUPREME COURT 348 "Shyam Singh v. Daryao Singh"

[36] AIR 1993 SUPREME COURT 2449

[37] AIR 1993 SC 1318

[38] AIR1923 PC 208

[39] Gajanan Jaikishan joshi V. Probhakar Mohanlal kalwar (1990) 1 SCC 166;Jagraj Singh v. Labh Singh, Air 1995 SC 945; M.K. Makbool Khan V. Shamsunisa, AIR 2002 NOC 87; Sardar Joginder Singh V. Vasandran Kakani, AIR 2203 NOC 340(Ori);N. Satyanarayana V. Vedprakash Dusaj, AIR 2003 AP 385; Ram Awadh V. Achhaibar Dubey,AIR 2000 SC 860

[40] (1997) 2 SCC 200;Hakim Singh V. Ram Snehi, AIR 2001 ALL 231

[41] I.T.C. Ltd. V. George Joseph Fernandes, AIR 1989 SC 839

[42] AIR 1999 SUPREME COURT 2309

[43] AIR 2005 SC 2813

[44] Air 2001 SC 1658

[45] AIR 1986 Bom 15

[46] Rajkumari V. Lachman Ram 14 CLJ 627

[47] AIR 2007 SUPREME COURT 119

[48] AIR 2007 SUPREME COURT 1256

[49] AIR 2000 Ker 408

[50] AIR 1992 SC 1604

[51] Air 1998 Cal,288

[52] AIR 2006 SC 145

[53] AIR 1965 SC 1045; Matadeen Agarwal V. Syed Abdul Razzak, AIR 1997 AP 103

[54] AIR 2001 AP 425

[55] Ram Prasad V. Babu Kashi Prasad Tewari, 1965 B.L.J.R. 214

[56] Collett, pg 260;261

[57] (1904) 28 Bom 420

[58] Durga Prasad V. Bhajan, 31 Cal 614 (P.C.)

[59] AIR 1937 Assam 49; Air 1954 Nag 328

[60] Suddha Singh V. Munshi Ram AIR 1927 Cal 605

[61] (1892)16 Bom 56

[62] Padmini Chandrasekharan V. R. Rajagopal Reddy, (1996) 8 SCC 632; Sowrashtra Vipra Sabha V. Namakal Municipality,(1996) 11 SCC 584; Prabhakar Adsule V. State of M.P., AIR 2004 SC 3557; Niranjan Singh V. Bant Singh, AIR 2004 P & H 334

[63] S.Madasamy V. A.M. Arjuna Raja, AIR 2000 Mad 465; it has been held that in a suit for declaration of title and consequential injunction, the burden is on the plaintiff to prove his right and possession over property. If the plaintiff fails to prove his clear title to he is no entitled to such declaration and consequential injunction.

[64] SNP Shipping Service Pvt. Ltd. V. World Tanker Carrier Corp. AIR 2000 Bom 34

[65] Munyaraj V. Venkatapati, AIR 1955 A.P. 172; Prabhakar Adsude V. State of M.P., AIR 2004 SC 3557; B.S.   Ruta V. S.N. Ruta, AIR 2004 SC 2546; M.P. Mathur V. D.T.C., AIR 2007 SC 414


Source : books and judgements,



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2 Comments for this Article



kavya

kavya

Wrote on 18 December 2012

TRULY... IT WAS OF GREAT USE.. THANK YOU VERY MUCH.



soura chatterjee

soura chatterjee

Wrote on 10 May 2012

THANK U BHAIYA YOU HAVE NO IDEA HOW MUCH YOU HAVE HELPED ME WITH THIS YOU HAVE MADE A SIMPLISTIC LAW HATS OFF TO YOU












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