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Law of Specific Relief

Shekhar Agrawal

The law of Specific Relief is an Act providing for an equitable remedy. In this, the court issues an order requiring a party to perform a specific act i.e. directs performing the contract as per the terms and conditions agreed between the parties rather than payment of compensation or damages for the non-performance of the contract. In another words, here the remedy provided is that suitor is granted the very same thing to which he is entitled, rather than money compensation in lieu thereof. It is based on the premise that there might be situations wherein grant of compensation would not afford adequate relief and only specific performance of the contract would render justice and provide adequate relief. This law is codified in Specific Relief Act, 1963 (as amended in 2018) and considered to be in one of the branches of the Indian Contracts Act, 1872.

The court’s power to grant specific performance is discretionary and based on justice, equity and good conscience. In Kanshi Ram Vs Omprakash Jawal & Ors AIR 1996 SC 2150, where 100 square yard plot at Lajpat Nagar, Delhi was agreed to be sold for Rs 16000/- in 1970, Court after considering low price, passage of such long time and plaintiff’s claim of compensation in the alternative, set aside decree of specific performance and instead directed compensation of Rs 10 lakhs.

Similarly, in Manoharlal vs Maya 2003 AIR SCW 2362 relating to sale of large piece of agricultural land by poor farmer to commission agent of fertilizer at uneconomic price, where only Rs 2000/- was paid as earnest money, Agreement was proved. Yet Court held that it is not fit case for exercise of discretion and declined specific performance and passed decree for refund of earnest money.

Recovery of Immovable Property: Any person entitled to possession of specific immovable property, even if such right of possession is temporary, may file suit for recovering such possession as per Code of Civil Procedure. If a person has been dispossessed or divested from the property against his will without due process of law, then that person can file a suit for recovery of possession, even if he does not have title or legal right to continue in possession. For example, if a tenant in possession, whose tenancy has been terminated is forcefully evicted by owner, without due process of law, he can seek restoration of possession. Owner can subsequently seek possession in civil court following due process of law.

There are certain essential requirements for fulfilment of recovery under this section that are as follows:

  • The person suing for dispossession must have been in possession of that property.

  • The person must be dispossessed from the property and such removal from the property must be unlawfully done

  • The dispossession must be without the consent of the person suing.

  • Suit must be filed by a person before the expiry of 6 months from the date of dispossession. 

  • No suit by a person can be brought against the government. 

Recovery of Specific movable Property: Similarly, any person entitled to possession of specific movable property, even if such right is special or temporary, may file suit for recovery of such article in manner provided in Code of Civil Procedure. When a person is in the possession or control of the article of which he is not the owner, may be compelled to deliver such article to the person entitled to its immediate possession in following cases:

  • When the article is held by the defendant as the trustee or agent of the Plaintiff

  • When compensation in money is not an adequate relief.

  • When it is difficult to ascertain actual damage caused to the person.

  • When the possession of the article has been wrongfully transferred from the person so entitled.

Specific Performance of Contract: Contracts between parties are base of any economic relations in modern world. If a Contract is broken, aggrieved party can claim against the party breaking the contract. But awarding compensation to an injured person is the only way that the law of contract can enforce a contract. However, in many cases compensation fails to serve the economic purpose of a contract. Until the contrary is proved it is presumed by the court that (i) that the breach of contract of immovable property cannot be adequately fulfilled by money (ii) the breach of contract of movable property can be relieved except in the cases of a) where the property is not an ordinary article of commerce, b) where the property is kept by the defendant as a trustee for the property

Specific performance usually depends upon the discretion of the court, but there are certain principles for performance which are mentioned as follows:

  • When in Contract, part which is left forms a small part of the total value of Contract and admits to compensation in money, Court may direct specific performance of so much of contract as can be performed and award compensation of money for the rest,

  • When in Contract, part which is left forms a substantial part of total Contract – and admit to compensation in money- Court may direct defaulting party to specific performance of such part which can be performed and award compensation for deficiency. Where , the deficiency does not admit to compensation, court may direct defaulting party to specific performance of that part of contract that can be performed provided consideration amount is paid and claim for deficiency is not there

  • When the part which can and ought to be specifically performed stands on separate and independent footing from other part of Contract which cannot and ought not to be specifically performed, Court may direct specific performance of former part only.

As regards right of purchaser or lessee of immovable property as against Vendor or Lessor with imperfect title, they can seek that such Vendor / Lessor obtain proper title from 3rd party, wherever such action is within right of Vendor / Lessor, including redeeming mortgage and obtaining valid discharge for amount not exceeding purchase consideration.

The law recognizes that certain type of Contract cannot be specifically enforced. These include Contracts:

  • where a party to the Contract has obtained substituted performance,

  • which involves performance of continuous duty which the court cannot supervise

  • which is so dependent on personal qualification of the parties that the court cannot enforce specific performance of its material terms

  • contract, which is in nature determinable

In Indian Oil Vs Amritsar Gas (1991 SCC (1), Hon’ble Supreme Court declined to specifically enforce the Dealership Agreement as same was terminable in nature.

Further, person seeking specific performance of contract must prove that he has performed or has always been ready and willing to perform the essential terms on his part. However, where such obligation include payment of money, there is no need to actually tender the amount or deposit the same in Court, unless directed by the Court. Person who has become incapable of performing or violates any essential term or acts in fraud or variance with terms of contract cannot seek specific performance. Similarly, Vendor or lessor with defective title of property cannot seek specific performance of contract. In Sitaram vs Radheyshyam 2008 AIR SC 143, Court held that for seeking specific performance, Plaintiff has to show that his conduct has been without blemish throughout

Rectification of Instruments: An Instrument is written record arising out of negotiation of contract. Sometimes, an instrument may fail to express the intention of the involved parties. Rectification of such an instrument may become necessary. Either party or representative in interest may file a suit for rectification of the instrument ie the plaintiff in his plaint as also the defendant in his defense may plead for rectification of instrument. Court can direct such rectification.

A contract in writing may first be rectified and then, if the party claiming rectification has so prayed and court thinks fit, may be specifically enforced. The party who wants to rectify the instrument must mention them in their pleading. No relief shall be granted when the rectification is not specifically pleaded.

Rescission: Any person interested in a contract may sue to have it rescinded, and such rescission may be adjudged by the court where the contract is voidable or terminable by the plaintiff and where the contract is unlawful for causes not apparent on its face and the defendant is more to blame than the plaintiff.

Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. In appropriate cases, the Court may cancel it in part and allow it to stand for the residue. Further, where Court grants relief of cancellation of instrument, court may also require the plaintiff to restore any benefit that he may have received from the other party and, in appropriate cases, also compensation.

Declaratory Decrees: Some time, a person who is entitled to some status or character or has a right in some property, but denied the enjoyment of such right by other parties. Under law of specific relief, he is allowed to proceed against any person who is denying or is interested in denying him his right. The Court may pass declaratory decree stating that the person has right over the title of the property. This decree and effect of such declaration will be binding on only the parties to the suit.

Preventive Relief: Preventive relief is considered to be any relief which abstains a party from doing any act; a relief from the court which details that the party should not perform certain acts for which the relief shall be prescribed. Such reliefs can be imposed in the form of injunctions ie person is prevented from doing what, in absence of such order, he could have done. These may be temporary, perpetual or mandatory.

There can be cases where contract cannot be specifically enforced and damages are not also appropriate remedy. In such cases, court may have to restrain the person who threatens the breach. For example, popular actor agrees to advertise a product and also agrees not to advertise competing product. In case, he is inclined to act in advertisement of competing product, injunction may be sought against that.

Temporary injunctions are granted to continue until a specified time or until further orders of the court. They can be granted at any stage of suit. Mandatory injunctions are granted where compelling performance is necessary to prevent the breach of an obligation. Perpetual injunctions, also known as permanent injunctions, can only be imposed after hearing the parties on the merits of the case. The perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation and imposing rights in his favour, particularly where:

  1. The defendant is the trustee of the property.

  2. Actual damage cannot be ascertained.

  3. Money as compensation would not be adequate relief.

In Ushaben N Trivedi V. Bhagayalakshmi Chitra Mandir and Ors AIR 1978 Guj 13, Hon’ble High Court dismissed Plaintiff Appellant’s contention for Injunction against release of a film. Hon’ble court held that the plaintiffs cannot get an order of injunction of the Court against the defendants as it is not reasonably clear that the exhibition of the film will be a nuisance. The principles of balance of Injury is material one and also is in favour of Defendant. Hon’ble court accordingly dismissed the Appeal.

Special provisions have been made regarding contracts relating to infrastructure projects to the effect that no injunction shall be granted causing impediment or delay in progress of such projects. Infrastructure projects are listed in the schedule and include projects relating to roads, electricity generation, shipyards, railways, airports, ports, oil pipelines, hospitals, tourism, affordable housing, industrial parks etc. Central Government is authorized to amend the schedule based on the requirement. Special courts are designated for expeditious and time bound hearing of such cases.

Compensation: In a suit for specific performance, plaintiff may also claim compensation for its breach in addition to specific performance. If the Court decides that specific performance ought not to be granted, but there is contract which has been broken by defendant, it shall award compensation to plaintiff accordingly. Such compensation may also be granted in addition to specific performance. It is however, necessary for plaintiff to claim such compensation in his suit, else it cannot be granted.

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