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Specific Relief Act, 1963

• Object: law on certain kinds of specific relief


• Sec 4: Specific relief to enforce individual civil
rights and not penal laws

• Meaning, Nature and features:


• Not exhaustive
• Exact fulfillment
• Actual execution
• Equitable relief: Discretionary Power
Available Reliefs
1. Recovery of possession of Property
2. Specific Performance of Contracts
3. Rectification and Cancellation of Instruments and Rescission
of Contracts
4. Preventive Relief
5. Declaratory Relief
1. Recovery of Possession of Immovable Property
Sec 5: Recovery of Specific Sec 6: Suit by person disposed of
Immovable Property immovable property
• Not based on title
• Based on TITLE
• Better title= entitled to
possession
• Based on possession
Subsequent wrongful
dispossession
+
• Objective
Title
• Actual Possession?
Ownership Possession • Rightful origin??
• Juridical possession?
• Resort to due process of law • Gratuitous ??
• Period of Limitation: 6 months
Specific Delivery of Movable Property
Sec 7: Recovery of possession of movable Sec 8: Liability of person in possession not as
property owner
• Plaintiff entitled to possession • Defendant is in possession of movable
• By virtue of ownership or by special or property
temporary right • He is not the owner
– Act of owner • Plaintiff is immediately entitled to
– Not by the act of owner possession
• Being in possession before • Thing claimed is held as agent or trustee
dispossession is not necessary • Compensation not adequate
• But securing immediate possession is • Difficult to ascertain damage
necessary to maintain the suit.
• Thing has been wrongfully transferred

• Suit against the owner


• No Suit against the owner
2. Specific Performance of Contract
Sec 10: Cases where specific performance enforceable
Sec 9: Defences
No standard to
Compensation in
ascertain loss or
money is not an
damaged caused due
adequate remedy
to breach of contract

• Must be Presumptions
ready and
willing to Movable
perform Immovable Compensation
To get • Privity of Property Property for breach
a contract
decree • Plaintiff When property is
not an ordinary
has come article of
Jabalpur Cable
with clean Breach of contract commerce Netwrok Ltd. v.
hands cannot be relieved by ESPN Ltd
compensation in money
When defendant
is holding it as a TV Signals
trustee or agent
Sec 14: Contracts which cannot be specifically
enforced
• Where money is adequate relief
• Dependent on personal qualifications or volition of parties / Of
such a nature that court cannot enforce specific performance
in material terms
• Contract which is determinable
• Where performance involves continuous duty which the court
cannot supervise
Performance of Trusts : Sec 11
• Specific performance can be invoked
• By Trustees or Beneficiaries

• But not in cases


• Where contract made by trustee is
– In excess of his powers (incompetence)
– In breach of his trust (unlawful)
Sec 12: Partial Specific Performance
General Rule: No enforcement of partial performance
Exceptions

• Part which cannot be performed = small • Part which cannot be performed = Big
• Part which can be performed = Big • Part which can be performed = Small
• Unperformed part can be compensated • Unperformed part can be compensated
adequately adequately
Specific performance of one part and Specific performance of one part and
compensation for the other compensation for the other
What if compensation inadequate
Only the party not in default may sue for part performance
Provided he relinquishes :
1) all claims for further performance
2) All rights of compensation on account of default
Right Of A Purchaser Or Lessee Against Person With
No/Imperfect Title
• Scope of sec 13: Limited only to sell or let
• Remedy of buyer and obligation of seller
• While entering into contract: imperfect title
subsequently: perfect title
• Concurrence/Conveyance of third party: to validate title
• Third party bound to concur at the request of vendor or
lessor
• where the property is mortgaged for the amount less than
the purchase money
Sec 17: Contract to sell or let property by one who has no title
cannot be specifically enforced in favour of vendor or lessor
Sec 15: Person for whom contracts may be
specifically enforced
• Who may obtain specific performance:
• Any party
• Representatives-in-interest
• Settlement on marriage, compromise between members of same family,
then any beneficiary
• Contract entered into by a tenant for life in due exercise of power, the
remainderman.
• A reversioner in possession
• A reversioner in remainder
• New company arising from amalgamation of a company
• Company against the promoters for contracts entered before the
incorporation of a company and accepted by company
Sec 16: Personal Bars to Relief
• Relief of Specific Performance cannot be awarded :
• If he would not have been entitled to compensation for breach
of contract
• If he is guilty of
– Became incapable of performing
– Has violated essential term of contract
– Has acted in fraud
• He has failed to proved that he has performed or has always
been ready and willing to perform
Sec 19: Relief against parties, legal representatives or
subsequent transferees
• Against either party
• Subsequent buyer “bonafide buyer??”
• Any person displaced by the defendant
• New company arising out of amalgamation of a company
entering into as contract
• Promoters of a company enter any contract before the
incorporation of company for the purposes of a company and
company accepts it, the company
Sec 20: Discretion and Power of Court
• Not to decree specific performance

• Where plaintiff gets an unfair advantage over the defendant

• Performance to cause some hardship to the defendant which he


did not foresee, non-performance will not cause such hardship to
plaintiff

• Where specific performance will be inequitable : K. Narendra v.


Rivera Apartments
– Substantial Performance by one side
– Mutuality of remedy
Sec 21: Power to Award Compensation
• Compensation for breach : in addition to specific
performance
• If no specific performance : Compensation for breach
• If specific performance + but not sufficient :
compensation to be awarded
• Sec 73 of Indian Contract Act to be applied
• Only awarded if claimed, but plaint allowed to be
amended at any stage
• Bar of suit for compensation for breach after dismissal
of suit for specific performance: Sec 24
Sec 22: Power to grant relief for possession,
partition, refund of earnest money, etc

• Any person suing for specific performance of contract


• Pertaining to immovable contract
• May ask for possession, partition, and separate possession
• Any other relief like refund of earnest money

• Note: it must be claimed specifically


Sec 18: Non-enforcement except with variation
• No Specific performance of a written contract
• If Defendant sets up a variation
• In following cases
• By Fraud, mistake of fact, misrepresentation : the contract in its
term or effect different from what parties agreed to
• Object of parties was to produce a legal result which cannot be
produced
• Subsequently to the execution of contract, parties varied in
terms
Sec 27: Suit for rescission
• When rescission may be Adjudged
When the contract is voidable or terminable by the plaintiff
When contract is unlawful and the defendant is more to blame

• When rescission may be Refused


Where plaintiff has ratified the contract : Affirmation
Where restitution not possible
Intervention of third parties
Severance

Sec 30: Court may require parties rescinding to do equity


Sec 28: Rescission in cases of immovable property
where specific performance already decreed
• After a decree of specific performance for sale or lease for
immovable party
• Lessee or purchaser fails to pay money
• Vendor/lessor may apply for rescission of contract
• Court may order Purchaser/lessee :
– To restore the possession so obtained
– Pay rents
– If case requires, refund the earnest money or deposit
Sec 26: Rectification of Instruments
• When instrument may be rectified :
• When through fraud or mutual mistake of parties contract does
not express their real intention
Rectification to be done
w/o prejudice to rights
• Who can claim acquired by third persons
in good faith and for value.
• Either party or representatives
• Plaintiff in any suit, if claim of rectification
• A defendant in any suit, if takes up an additional defence of
rectification
Sec 31-33: Cancellation of Instruments

When cancellation may be ordered: when contract is voidable or


void : Sec 31

Restoration of benefits : Sec 33

What instruments can be partially cancelled: Sec 32


If it is an evidence of different rights or obligations, court may
cancel it in part and allow to stand for residue
Declaratory Reliefs : Sec 34-35
• Circumstances :
• Plaintiff entitled to any right or legal character at a time of a suit
• Defendant has denied
• Plaintiff not in a position to ask for relief consequential upon the
declaration

• Binding on:
• Parties
• Persons claiming through them: reversioners, widows, sons, etc.
• When parties are trustees, then persons for whom the parties are
trustees
Injunction Temporary Perpetual
Mandatory
Kinds of Preventive Relief: Injunction Regulated By Sec 38, Specific
CPC Relief Act

For Protection of
Discretionary
Injunction to restrain
repetition or Interest in
continuation of breach Property

Property on dispute may be


damaged or sold by other party
Damages in lieu of
Defendant threatens to dispose property
Injunction : Sec 40
with intention to defraud the creditors

Defendants threaten to dispossess plaintiff


or cause injury
Perpetual Injunction
• Granted only after hearing upon merits
• Regular suit is filed and rights claimed are examined
• Finally decides the rights of the party

Perpetual Injunction: Sec 38


• To prevent breach of an obligation of plaintiff
• When obligation arising out of contract, rules of specific relief to be
applied
• If right threatened or invaded, in cases where defendant
– Is trustee of property
– No standard to ascertain loss or compensation not adequate
– Necessary to prevent multiplicity of proceedings
Mandatory Injunction: Sec 39
• To prevent breach of obligation
• It is necessary to compel performance of certain acts
• Court to be capable of enforcing such act
• An order that requires the defendant to do a positive act

• When not granted:


• When compensation is adequate
• Plaintiff has shown acquiescence
where it is desired to create new state of things
Injunction when refused: Sec 41
• To restrain a person from a judicial proceeding where injunction is
sought (unless to prevent multiplicity of proceedings)
• Stay of proceeding in a Court not subordinate
• To restrain a person from instituting a criminal matter
• To prevent breach of contract which cannot be specifically enforced
• To prevent nuisance, if not clear whether it is nuisance
• To prevent continuous breach where plaintiff has acquiescence
• When equally effective relief can be obtained (except in breach of
trust)
• When plaintiff has no personal interest in the matter
Government Contracts
• Article 298: Executive Power of Government to enter into contracts
• Article 299: Manner of Formation
– Shall be made and executed in the name of President or Governor
– They shall not be personally liable
• Valid only when it is writing. Executed??
• Executed by a person duly authorized to do

• Effect of non-compliance:
– Ratification
– Estoppel
– Art. 14
– Quasi-Contractual Liability