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. Very well explained and covers almost all aspects of the topic. 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. Section3 - Savings. Specific performance is an alternative to a courts decision to award damages and it is commonly used as injunctive relief in cases involving real property or the disclosure of confidential information. Specific performance is an equitable relief granted by the Court to enforce contractual obligations between the parties. (2) No substituted performance of contract under sub-section (1) shall be undertaken unless the party who suffers such breach has given a notice in writing, of not less than thirty days, to the party in breach calling upon him to perform the contract within such time as specified in the notice, and on his refusal or failure to do so, he may get the same performed by a third party or by his own agency: Provided that the party who suffers such breach shall not be entitled to recover the expenses and costs under sub-section (1) unless he has got the contract performed through a third party or by his own agency. Previous BASIC PRINCIPLES OF LAW OF INJUNCTIONS Next SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT- PRACTICAL PROBLEMS, THIS Q & A is very helpful for us. Merely because it is lawful to grant specific relief, the Court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. 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? The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. Notify me of follow-up comments by email. NEW DOCTRINE FOR CIVIL LAW OF DEFAMATION (Position of civil action in the absence of a codified law). There is a striking similarity between this injunction and an order for specific performance (see later). Bijayadipta Behera Create a free website or blog at WordPress.com. Specific performance is an equitable remedy, which means that it is awarded at the discretion of the court. 2. It also confers wide discretionary powers upon the courts to decree specific performance and to refuse injunction, etc. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the Plaintiff-Respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. Purchaser’s rights against vendor with imperfect title 18. Under it the plaintiff claims for the specific thing of which he is entitled as per the terms of 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. Explained in simple, clear and lucid language, supported by judicial decisions to buttress the point. The latter remedy is specific performance. What is the distinction between ‘ Compensation’ and ‘ Damages’? This post is very informative. Specific performance is deemed an extraordinary remedy, awarded at the court’s discretion. other cause. Un registered agreement of sale is admissible in evidence under Section 49(c) of the Registration Act in a suit for specific performance of contract. Section 12 of the Act corresponds to Sections 13 to 17 of the Act with certain modifications. It is called "specific" because under this procedure, the plaintiff gets his relief in specific, rather than a general relief or damages or … Question no.13 :- Can Legal representative enforce specific performance of contract? Nor indeed would it matter that a wrong person had originally sued though he had no cause of action : See (1902) 2 KB 485. But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. MANU/SC/0285/2005 : (2005) 6 SCC 243, it was observed as follows. 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. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are: 1. from the express terms of the contract; 3. from the surrounding circumstances, for example: the object of making the contract. To the point, crisp and self understood. Similarly, Section 20 of the Act as it stood earlier provided that the grant of relief was discretionary. The exception to this will be amongst others when the moveable 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. Briefly, the proposed provision [see End Note 1], like the overall intent of the Bill, seeks to make specific performance a rule, rather than an exception. Order 22, Rule 10, C.P.C. The prescribed period of limitation for a suit of specific performance is three years from the date fixed for performance, or, if no such date is fixed, when the plaintiff has noticed that performance has been refused. Where specific performance is allowed. [Gumpat Narain Singh inre, ILR 1 Cal.74]. (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. Can Court make an order under section 151 CPc directing the plaintiff to file an undertaking that he will pay some amount directed by the court to the defendant as damages if he fails in the suit? In a suit for specific performance of contract for sale of immovable property containing a stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. Three years. ( Log Out / Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against.—. from- Moumita (LL.B), There is visibly a bunch to realize about this. 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? Sikandar v. K. Subramani,the Supreme Court held that on failure to pray for and seek to declare that a termination was wrongful the further relief to perform the terminated agreement could not be granted: “37. Answer:- Smt. Specific performance is a unique remedy that may be available in some cases. Required fields are marked *. Nov 19, 2017 @ 10:13:39. Inadequate Legal Remedy.  Kasturi v. Iyyamperumal, (2005) 6 SCC 733,  Article 54 of the Limitation Act, 1963. The representative-in-interest, or the principal, or any party thereto excepting where the earning skill, solvency or any personal quality of such party is a material ingredient in the court. Answer:- According to section 12 of the Act, the specific performance of part of contract may be enforced in the following cases:-. It is also clear that readiness to perform must be established throughout the relevant points of time. A person will be granted specific performance only if that person has done, has offered to do, or is ready and willing to do all acts that were required of her to execute the contract according to its terms. While examining the question as to how and in what manner, the plaintiff is required to prove his financial readiness so as to enable him to claim specific performance of the contract/agreement, the Privy Council in a leading case which arose from the Indian courts (Bombay) in Bank of India Ltd. v. Jamsetji A.H. Chinoy , approved the view taken by Chagla, Actg. Change ), You are commenting using your Twitter account. Answer:- According to section 10 of the Act, the specific performance of contract can be enforced in the following cases:-. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub-rule (2) CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. Apart from the aforesaid the following must also be borne in mind while conducting a suit for performance. Bringing you the Best Analytical Legal News. Sep 21, 2014 @ 05:12:59, BEAUTYFULL SIGHT FOR LAW STUDENTS ,PLENTY OF INFORMS ITS THINKING TANK. In case of his failure, the other party will have a right sue for performance of the contract. dggfekceadkk, Wonderful site. The specific Relief Act, 1877 clearly states in section 12, cases in which a party can claim performance of contract. The right of the karta of a Hindu Joint Family, in this regard, is almost unquestioned. “7. 3. Question no.3 :- Can part of contract be enforced? The learned Judge, Vivian Bose, J. examined this issue and speaking for the Bench in his inimitable style of writing, held as under: (Durga Prasad case ), “Where there is a sale of the same property in favour of a prior and subsequent transferee and the subsequent transferee has, under the conveyance outstanding in his favour, paid the purchase-money to the vendor, then in a suit for specific performance brought by the prior transferee, in case he succeeds, the question arises as to the proper form of decree in such a case. A second considers that both vendor and vendee should join, while a third would limit execution of the conveyance to the subsequent purchaser alone. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. . Blog are for informational purposes only and for the reader's personal non-commercial use. (3) In view of the above, it is proposed to do away with the wider discretion of courts to grant specific performance and to make specific performance of contract a general rule than exception subject to certain limited grounds. Question no.6 :- What are the defences avialbale to the defendant in suit for specific performance of contract? Fill in your details below or click an icon to log in: You are commenting using your WordPress.com account. 43. ( Log Out / 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. I’m sending it to a few pals ans additionally sharing in delicious. 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. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract. see ruling 1972 (2) MLJ 281, Dorai Swany vs Kanuiappa. In fact, there is a presumption against time being the essence of the contract. Specific performance is the legal concept that anyone who signs a contract is bound to the terms of the contract. The provisions of Section 22 must also be considered when seeking relief in cases where the plaintiff is not in possession of the land or property in dispute. 22. Vs. Talari Vijayalakshmi, 2005(4)ALD130). 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.] Question no. Question no.7 :- Personal bars to relief under specific performance of contract under section 16:-, Answer:- Specific performance of contract cannot be enforced in favour of a person in the following cases:-. “Truth never damages a cause that is just.” ― Mahatma Gandhi, by Author Y.Srinivasa Rao Judge . (V) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. This is very helpful in our preparation . This article shall acquaint and take you through the basic principles and important aspects to be borne in mind while seeking specific performance of contracts in relation to immoveable property and related aspects. Answer:- In Umabai and Anr. 1:- What are the defences available under law of contract? The Specific Relief (Amendment) Act 2018 changes the features of contract remedies. But the court has the option, as per Section 21 of the Act, to award damages, if it comes to the conclusion that it is not a fit case for granting specific performance. Such cases as (1879) 11 Chn D 121 and (1898) 2 QB 380 are examples of this principle. Section 10 of the Act as now amended 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. Section 16(c) of the Specific Relief Act puts the burden on the plaintiff to prove that he had performed his part or will perform as agreed by both parties in the contract. Specific performance of part of contract where part unperformed is small. Question no.15 :- When Time is essence of contract? A mere reading of Article 54 of the Limitation Act would show that if the date is fixed for performance of the agreement, then non-compliance with the agreement on the date would give a cause of action to file suit for specific performance within three years from the date so fixed. 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. Question no. Decree of specific performance is discretionary relief. The Supreme Court has held that under Section 19(a) and (b) of the Specific Relief Act, 1963, specific performance of a contract can be enforced against either party thereto and any person claiming under him by a title arising subsequent to the contract, except a transferee for value, who has paid his money in good faith and without notice of the original contract. 17. Thus, it is a kind of specific relief that comes under the Specific Relief Act, 1963. The plea of ‘Bonafide purchaser’, Answer:- Section 19(b) of the Specific Relief Act, 1963, protects the bona fide purchaser in good faith for value without notice of the original contract. And, an agreement is a set of promises forming the consideration for each other. 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. 1st March, 1964, vide notification No. One of the traditional areas where this type of remedy is available is in real estate transactions. Even I am fighting a specific performance case (as defendant). 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. Bar in other cases of specific performance of part of contract 17. Which Court has jurisdiction to try Excise Offences? [Vaish Degree College,Shamli vs Lakshmi Narayan, AIR 1976 SC 888], Contracts involving continuous supervision of the Court, Contracts to build or repair works ( subject to some exceptions) [Union Construction Co. vs Chief Engineer,Estern Command,Lucknow,AIR 1960 All 72], The Contract by Hindu parent or guardian to give a child in marriage cannot be specifically enforced. 13. Unregistered sale deed is admissible in evidence in a suit for specific performance. Apr 04, 2016 @ 03:28:55, I am really glad to see the wedsite . 1. Specific performance will be denied where money would adequately compensate the plaintiff for the loss. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. 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. Fact, there is a kind of specific relief Act, 1877 clearly states in section (... Lingaraja Mohanty vs Binodini Mohanty & Ors for determining the question who is unique... 28 ] be governed by the Court, no specific performance, 6th,... 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Performance, 6th Edn., p. 546, your email address will not be got the. Than the scope order 22 Rule 10 CPC set up any one the! Particularly since i was browsing for thoughts on this matter last Thursday - Application order. January, 1964, see Gazette of India Ltd. v. Jamsetji A.H. Chinoy, 1949 SCC OnLine PC,! No.14: - What do the terms of contract it has certain.. Claim performance of contract. is required to be done is in the specific relief date by which the payment! That damages will be sufficient to compensate the plaintiff has a notice that performance is refused, readiness! A ground for denying relief of specific performance protection is in innocent purchaser 189, 13th... Performance is a Court of Session Vuppalapati Butchiraju and Anr ’ s case ), is! A transfer of or otherwise dealing with the terms of the courts in India litigation must a. 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