but not guaranteed, to be correct, complete, or up to date. An Act to define and amend the law relating to certain kinds of specific relief. For specific performance of a contract. AIR1980Cal258. [2010(5)ALD124(SC), Vinod Seth Vs. Devinder Bajaj and Anr.]. Although one of the factors showing the readiness and willingness may be the ability of a plaintiff to make payment that cannot be a factor by itself to disentitle the plaintiff the grant of relief. 44. * Advocate, High Court, Bombay. I’m sending it to a few pals ans additionally sharing in delicious. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. Specific performance is equitable relief, given by the court to enforce against a defendant, the duty of doing what he agreed by contract to do. Specific performance of part of contract where part unperformed is large 15. *                                   *                                   *. [7] Section 20. Answer:- According to section 10 of the Act, the specific performance of contract can be enforced in the following cases:-. – For the purposes of clause (c) –. What are the factors a Court considers when decoding to grant or refuse specific performance. Personal bars to relief – Specific performance of a contract cannot be enforced in favor of a person –, (a) – (b)      *                          *                            *. When it is probable that pecuniary compensation cannot be got for the non performance of the act agreed to be done. 1. i also filed a suit under specific performance act. Thank you. Specific performance in respect of contracts. Ms. Agarwal has read to us the statement of PW 2. Specific performance of part of contract where part unperformed is small 14. For the act which requires continued supervision of the Court, no specific performance would be ordered. Irene De Guzman Section 12 (1), (2) and (4) of the Act provide exceptions to the general rule of specific performance of a part of a contract. [1] ‘Specific Performance’ is a remedy ordered by courts, that requires precise fulfillment of the contractual or legal obligation. MANU/SC/0285/2005 : (2005) 6 SCC 243, it was observed as follows. (Sec.14 (1) (d)), no specific performance would be ordered for contracts for personal work or service, ‘Equity’ will insist on the principle of mutuality, The person against whom the relief is claimed may take plea by way of defence under law relating to contract. other cause. In the cross- examination, PW2 stated that he had not offered at any time to Boramma the amount and that he had not deposited any amount in court. Lord Romilly M.R opined that ‘the Court can not specifically perform the contract piece meal but it must be performed in its entirety if performed at all’. [See     AIR 1992 SC 1604, Jagdish Singh vs Nathu Singh]. "Specific performance implies an order compelling a party to perform some act or do some thing that is required under the contract." Answer:- “The jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such relief is to be granted. The right of the karta of a Hindu Joint Family, in this regard, is almost unquestioned. When the act agreed to be done is in the performance… It also confers wide discretionary powers upon the courts to decree specific performance and to refuse injunction, etc. Question no.2 :- When can  specific performance of a contract be enforced? Injunctions are also sometimes based on breach of contract, and they come in … [25] Kasturi v. Iyyamperumal, (2005) 6 SCC 733, [31] Article 54 of the Limitation Act, 1963. Specific performance can refer to any kind of forced action, though it is usually enforced so as to complete a transaction that had been previously agreed to. This cannot be done unless the plaintiff seeking performance also makes necessary averments in the plaint showing and disclosing facts which disclose the readiness and willingness and or performance. In case of his failure, the other party will have a right sue for performance of the contract. (v) Substituted performance of contracts: The Amended Act has incorporated a new concept of ‘substituted performance’ of contracts, which has wholly replaced the erstwhile section dealing with guidelines for exercising discretion for grant of specific performance. The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed. As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of agreement of sale as bad in law. Inadequate Legal Remedy. A mandatory injunction is one which orders the defendant to perform a specific act, such as taking down a hoarding that unlawfully infringes the claimant’s rights. It is considered an equitable remedy and is used when traditional monetary damages do not suffice to resolve a legal dispute. Hello.This article was really interesting, particularly since I was browsing for thoughts on this matter last Thursday. [18]. [ Prakash Chandra Vs. Narayan, AIR2012SC2826]. Question no. Judge Srinivasa Rao really explains it so well here and breaks it down fundamentally for the lay person to appreicate. The contents are intended, Section 10 of the Act as now amended[4] emphasises that specific performance is usually to be granted and denied only in circumstances as set out in Sections 11, 14 and 16 of the Act[5]. positive way to use Internet. A second considers that both vendor and vendee should join, while a third would limit execution of the conveyance to the subsequent purchaser alone. © 2018 EBC Publishing Pvt. The law relating to specific performance as engrafted in the Specific Relief Act, 1963 (“the Act”) is an extremely important facet of civil law. “42. Adv.Ajay Bhakt Mar 17, 2016 @ 02:42:37, Good column. The jurisdiction to decree specific performance is discretionary. The contents are intended, Specific performance is a unique remedy that may be available in some cases. [Sukumar vs Susheel, 76 C.W.N 116] [See section 20 of S.R.Act], There should be a valid contract. Explanation to clause (c)  of Section 16 makes it clear that 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.”, “31. 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(i) He may obtain (on motion in the action) an order appointing a definite time and place for the completion of the contract by payment of the un-paid purchase-money and delivery over of the executed conveyance and title deeds, or a period within which the judgment is to be obeyed, and if the other party fails to obey the order, may thereupon at once issue a writ of sequestration against the defaulting party’s estate and effects. Discretion as to decreeing specific performance: 21: Power to award compensation in certain cases: 22: Power to grant relief for possession, partition, refund of earnest money, etc. When the act agreed to be done is in the performance, wholly or partly of a trust ii. When does ‘false representation’ disentitle the plaintiff to t he equitable relief under section 22 of the Act? Section2 - Definitions. As a general rule, a contract is intended to be deal with as a whole but not piecemeal. Specific performance is an equitable relief granted by the Court to enforce contractual obligations between the parties. Question no.10 :-  What do the terms ‘Ready and willing to perform’ mean? In fact, there is a presumption against time being the essence of the contract. “16. HC decides, The Judicial Universe of Mr Justice Krishna Iyer, Despite many witnesses turning hostile, SC finds man guilty of killing his wife in 1999; Says it’s not an unusual event in long drawn out trials in India, Tri HC | What is the purpose of a serving a ‘Statutory Notice’ under Negotiable Instruments Act? Meaning of Specific Performance The law relating to equity, in India today, is contained in the Specific Relief Act, 1963 (Act 47 of 1963 "Act"). 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….”. To explore … (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. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors. Bar in other cases of specific performance of part of contract 17. Section 12 of the Act corresponds to Sections 13 to 17 of the Act with certain modifications. However, section 12(1) is an exception to the general rule. It is a remedy in performance as opposed to a claim sounding in damages for breach of contract where pecuniary compensation is granted as relief for failure to carry out the terms of the contract. The principle was again applied recently in Vijay A. Mittal v. Kulwant Rai.[28]. Answer:- Even if there is no provision in the contract for specific performance, the court can direct specific performance by the vendor, if breach is established. In the General Clauses Act exphasis is laid on honesty. Basically this entire concept of specific performance arises from the fact that a contract exists.The statutory definition of a contract is that it is an agreement enforceable by law. EBC Publishing Pvt. S.O. Specific per… 22. Change ), You are commenting using your Twitter account. The Specific Relief (Amendment) Act 2018 changes the features of contract remedies. Create a free website or blog at WordPress.com. Blog are for informational purposes only and for the reader's personal non-commercial use. Answer:- An agent cannot personally enforce contracts entered into by him on behalf of his principal not is he personally bound by them in the absence of any contract to that effect. ( Log Out /  If he fails to do so, his claim for specific performance must fail. Ltd. disclaims all liability to any person for any loss or damage caused by errors or omissions, whether arising from negligence, accident or any Section 12 (1), (2) and (4) of the Act provide exceptions to the general rule of specific Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. Such cases as (1879) 11 Chn D 121 and (1898) 2 QB 380 are examples of this principle. What is the distinction between ‘ Compensation’ and ‘ Damages’? Answer:-  Sri Kakulam Subrahmanyam and another Vs. Kurra Subba Rao, AIR1948PC95, Held: A minor’s agreement being now decided to be void, it is clear that there is no agreement to be specifically enforced; and it is unnecessary to refer to former decisions and distinctions, following English authorities which were applicable only on the view now overruled by the Privy Council. Specific performance is an equitable remedy, which means that it is awarded at the discretion of the court. Specific performance in respect of contracts.—The specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of section 11, section 14 and section 16.] Apart from the aforesaid the following must also be borne in mind while conducting a suit for performance. Really appreciable. [6] Statement of Objects and Reasons of Amending Act 18 of 2018.—The Specific Relief Act, 1963 was enacted to define and amend the law relating to certain kinds of specific relief. Subs. Where the doubtfulness of the title cannot be resolved except by proving certain intruinsic facts or by agitating against the parties other than the parties to the contract; the court cannot grant the relief of specific performance;  A doubtful title is one regarding which some doubt persists but a bad title one defective in its nature. 43. Section1 - Short title, extent and commencement. If it is inequitable to grant specific relief, then also the Court would desist from granting a decree to the plaintiff.” (This para was observed in Nallam Seeta Mahalakshmi and Ors. However, in my view it is still mandatory for the plaintiff to prove that he has already performed or was always ready and willing to perform the essential terms of the contract which were to be performed by him. (Sec.9), Illegality or want of authority to enter into contract, If there exists no standard for ascertaining the actual damage caused by the non performance of the act which agreed to be done. Court Passing the decree retains control over the decree even after the decree is passed. (1) Except as otherwise provided in this Act, specific performance of a contract shall, be enforced when the act agreed to be done is in the performance wholly or partly of a trust. “7. Section 10 of the Act as amended by the Specific Relief (Amendment) Act, 2018 seeks to make a departure … Question no. C.J., and held inter alia that: “it is not necessary for the plaintiff to produce the money or vouch a concluded scheme for financing the transaction to prove his readiness and willingness.”, 25. Even though Section 10 of the Act now stands amended, it does not mean that specific performance for moveables will be ordinarily granted. If the plaintiff fails to either aver or prove the same, he must fail. — The specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of Section 11, Section 14 and Section 16. v. Nilkanth Dhondiba Chavan (Dead) by LRs and Anr. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. Although the plaintiff can elect to claim specific performance from the defendant, the court has a discretion to grant or decline the order of specific performance. Specific performance was refused by High Court by determining the agreement of sale as invalid, on the ground that the provisions of Section 33 of Karnataka Co-operative Societies Act, 1959, invalidates such agreement of sale, because the suit properties were sub­ject to charge on the date of sale, since the seller had taken a loan on security of goods. Bringing you the Best Analytical Legal News. This can be treated as damaging of a document evidencing the contract, Only 1.9% of the total sales consideration was paid, Date of order be considered. One of the traditional areas where this type of remedy is available is in real estate transactions. Specific performance vs injunction. Specific performance of independent part of contract 16. Section 16(c) of the Act as amended by the Specific Relief (Amendment) Act, 2018 no longer requires the plaintiff to plead readiness and willingness as it was earlier mandated by a mantra in the plaint. To the point, crisp and self understood. [3] As amended by the Specific Relief (Amendment) Act, 2018, [4] As amended by the Specific Relief (Amendment) Act, 2018, [5] Section10. But in this connection it is necessary to refer to Section 22 of the Specific Relief Act, 1963. Specific performance is deemed an extraordinary remedy, awarded at the court’s discretion. The common law provided only damages and thus, historically, equity stepped in and provided the remedy of specific performance in some cases (usually, where the subject matter of the contract was unique). Inadequate Legal Remedy. The Act, Section 10 of the Act as amended by the Specific Relief (Amendment) Act, 2018 seeks to make a departure and is an attempt to reduce the discretion of the Courts relating to enforcement of specific performance of contracts in keeping with the Statement of Objects and Reasons for the amending Act of 2018, However with the amendment to Section 20 by the Amendment Act in 2018, it now also seeks to take away the discretion to an extent, It is necessary that a plaintiff’s conduct in performance of the contract or attempting to fulfil the same shows an unwavering intention of wanting to perform. (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or   made by him, in case his claim for specific performance is refused. As stated earlier, mere false representation is not enough. Specific Relief (Amendment) Bill, 2018 introduces a new concept of “substituted performance” by proposing to amend certain provisions of the Specific Relief Act, 1963. Readiness must be shown throughout up to the date of the decree. Specific performance of part of contract where part unperformed is small. (ii) He may apply to the Court (by motion in the action) for an order rescinding the contract. Answer:- In Umabai and Anr. Escalation in the price of the land cannot, by itself, be a ground for denying relief of specific performance. If a legal remedy will put the injured party in the position he or she would have enjoyed had the contract been … 2. 20:- Alternative relief of refund of earnest money, Answer:- Where the vendee suing for specific performance of contract of sale in the same suit asked in the alternative for the relief of refund of earnest money or advance money, paid under the contract of sale, can, as an aggrieved person, prefer appeal against the judgment and decree of the first court which granted him only the relief of return of the earnest money or advance money while denying him the relief of specific performance. Answer:- The question as to whether the grant of relief for specific performance will cause hardship to the Defendant within the meaning of Clause (b) of sub-section (2) of Section 20 of the Specific Relief Act, 1963, being a question of fact, the first appellate court without framing such an issue ought not to have reversed the finding of the trial court while concurring with it on all other issues with regard to the Appellant’s entitlement to relief for specific performance of contract. Specific performance is now to be conferred the status of a general rule rather than an exception, subject to a limited set of grounds embedded within Section 11(2), 14 and 16 of the act. See section 230 of Indian Contract Act,1872. Section 12 (1), (2) and (4) of the Act provide exceptions to the general rule of specific performance of a part of a contract. Section 10 of the Act as amended by the Specific Relief (Amendment) Act, 2018 seeks to make a departure and is an attempt to reduce the discretion of the Courts relating to enforcement of specific performance of contracts in keeping with the Statement of Objects and Reasons for the amending Act of 2018[6]. in Skinners’ Co. v. Knight (1891)2 Q.B. 1. Can you share your email address with me on niravjagruti@gmail.com please ? According to one point of view, the proper form of decree is to declare the subsequent purchase void as against the prior transferee and direct conveyance by the vendor alone. Kamal Rani (dead) by LRs, 1993 (1) SCC 519, it was held that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. 10. ( Log Out /  Answer:- No. Question no. Post was not sent - check your email addresses! (V) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. Read HC’s opinion in light of SC decision, Know Thy Judge| Justice Dr. DY Chandrachud, [MV Act] Kar HC | Will the insurance company be liable for compensation if the vehicle was insured as ‘private vehicle’ but plyed on ‘hire’ at the time of accident? Specific Performance is a general remedy.… . [ See section 14 (1) (a) of S.R.Act) , [Devendar Singh vs Syed Khaja, AIR 1973 SC 2457], Contracts involving personal service. Question no.4 :- What type of contracts cannot be enforced? Specific performance is a very complex area of law, and there are many circumstances which prevent the court from making such an order, including: 1. 26. This site uses Akismet to reduce spam. It is similar to specific performance and often used interchangeably in statutes. when he says: ‘In my opinion, on the evidence already on record it was sufficient for the court to come to the conclusion that Plaintiff 1 was ready and willing to perform his part of the contract. Under current law, courts grant specific performance when they  perceive that damages will be inadequate compensation. Decree of specific performance is discretionary relief. The Specific Relief Act, 1963. Mar 05, 2016 @ 12:50:34, subhash Sharma Addition to specific performance of contract in speedy manner was laid down the... Where this type of remedy is available is in innocent purchaser directly and specifically in question b ) thereof either! Also sufferer of ex parte decision of Court case decree retains control over the decree passed. Practice of the contract. from a particular Act and lucid language, supported by judicial decisions to buttress point. At the discretion of the Act agreed to be granted and claimed this! Also confers wide discretionary powers upon the courts to decree specific performance may be enforced was Ready... A remedy ordered by courts, that requires precise fulfillment of the person seeking relief no.12... 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The follwing defences in a certain way Out in the following well-settled criteria and principles while granting or to. The specific relief Act, 1963 or click an icon to Log in: you are commenting using WordPress.com. Reliefs of possession and partition and separate possession of the pleadings as also injunctive reliefs which can granted! Between ‘ compensation ’ and ‘ damages ’ Magistrate Court or the Court, no specific performance fail... 5 of the property in dispute by any party to perform must be established throughout the points... V. Nilkanth Dhondiba Chavan ( Dead ) by LRs and Anr. ] business friendly Application. As land sale many more unanswered ones necessary party in a suit specific performance act specific performance will be ordinarily granted be! Practice of the Act now stands amended, it is now clear that readiness to ’! 20 April, 2011 ), Create a free website or Blog at WordPress.com it... Was laid down in the plaint or a statement made in the or! 2011 ), question no Blog at WordPress.com ] section 10 of specific is... Or proceeding pending in a suit for specific relief that comes under the relief. 10 in the plaint or a statement made in the nature of an.! 3, for section 10 of the Act which requires continued supervision of the contract. lay person to.! Promoters Ltd. ] vs Naziran Bibi, AIR 1928 PC 75 ] be seen that (! Joint promisees maintainable Limitation Act, 1963 is kept blank stage of the courts still consider the following:. Sc 1654 ) is material and relevant and is used when traditional monetary damages do not suffice in an.! Breaks it down fundamentally for the Act says specific performance further reliefs mentioned in clauses ( a and. While specific performance consideration which he has to pay to the entirety of contract... ) and Ors question no.17: - the defences that are available under law contract! 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Publishing Pvt a format is superb for a litigation practioner.thank you, very helpful information u! ) – filed a suit or proceeding pending in a suit for of... Or up to Their obligations section 22 of the contractual or legal obligation )! 18 of 2018, s 3, for section 10 of CPC and order 1 Rule CPC. Land can not be specific performance act are to be done III the defendant in suit for.! Personal non-commercial use that two tests are to be available in some specific cases such land. Enforce specific performance case ( as a general Rule prior to its amendment ) Act 2018 the... Show his readiness and willingness to perform must be a suit under performance! Jala Anjaiah Vs. Ramisetty Anjaiah, MANU/AP/1014/2011 ) niravjagruti @ gmail.com please consider i.e 12 of its judgment in Yohannan! C ) – requires all parties to Act within the terms of contract where unperformed! Thing that is required under the specific relief ( amendment in 2017 ) here is the amendment PDF ’... 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