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Meaning
1. Discretionary powers of the court
Discretion of the court refers to a judge's choice in the matter to decide based upon a
consideration of all factors involved, as opposed to have to decide based upon a
predefined legal guideline or rule.
2. Decree
​ A formal and authoritative order, especially one having the force of law
3. Specific performance
Specific performance is an ​equitable remedy​ in the ​law of contract​, whereby a court
issues an order requiring a party to perform a specific act, such as to complete
performance of the contract.
Specific performance of Contract
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. Thus, the remedy of
specific performance is in contrast with the remedy by way of damages for breach of
contract, which gives pecuniary compensation for failure to carry out the terms of the
contract. Damages and specific performance are both remedies available upon breach of
obligations by a party to the contract; the former is a ‘substitutional’ remedy, and the
latter a ‘specific’ remedy. The remedy of specific performance is granted by way of
exception.
The plaintiff seeking this remedy must first satisfy the court that the normal remedy of
damages is inadequate, the presumption being that in cases of contracts for transfer of
immovable property , damages will not be adequate. Even in these cases, specific
performance is not always granted, as it is a discretionary remedy.
The relief must be specifically claimed. When the plaintiff claims specific performance
of a particular agreement, the suit could be decreed for specific performance of that
agreement, and not any other.
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.

Section 10 of the Specific Relief Act, 1963 , states “ Cases in which specific performance of contract
enforceable.1

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​Section 10 of the Specific Relief Act, 1963 , states “ Cases in which specific performance of contract enforceable.

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Cases in which specific performance of contracts connected with trusts

enforceable​.​—(1) Except as otherwise provided in this Act, specific performance of a 1
[contract shall], 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.
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 be a 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 admitting 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) 2 [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.

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​1. Subs. by Act 18 of 2018, s. 4, for “contract may, in the discretion of the court” (w.e.f.
1-10-2018). 2. Ins. by Act 52 of 1964, s. 3 and the Second Schedule (w.e.f. 29-12-1964)

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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 person 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 lesser 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.

Specific performance of contract Sec ( 9-25 )3

1. Contacts which can be specifically enforced

2. Contacts which can not be specifically enforced
3. Person for or against whom contacts may be specifically enforced
4. Discretionary and powers of court

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1. Subs. by Act 18 of 2018, s. 5, for section 14 (w.e.f. 1-10-2018).

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CONTRACTS WHICH CAN BE SPECIFICALLY ENFORCED

1. When there exists no standard asserting by the actual non performing act
2. When the compensation in money in adequate relief

In case of Breach of contract in Relation to

Transfer of Immovable Property - Companisation in Money inadequate relief
Transfer of Movable Property - Compensation is adequate relief

However, in the case of movable property​ – in the following cases, compensation is

inadequate relief Where it is not an article of ordinary commerce; or
Where it consists of goods which are not easily obtainable in the market.
Where such goods are special value or interest to the plaintiff.
Where the property is held by the defendant as the agent or trustee of the plaintiff.

CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED

The following contracts cannot be specifically enforced….
SECTION-11(2)
A contract made by a trustee in excess of his powers or in breach of trust.
SECTION-14(1)
1. Where compensation is adequate relief.
2. Where a contract (for its performance) depends on the personal qualifications or volition
of the party.
3. A contract which is in its nature determinable (in which damages can be ascertained).
4. Which involves the performance of continuous duty which court cannot supervise.
5. Where a contract runs into minutes or numerous details.

The following contracts cannot be specifically enforced​…​. SECTION-14(2)

A person cannot be compelled to go for arbitration when a dispute arises. However, where there
is an arbitration and the party refuses to respect it, the other party may request the court to bar the
suit as there is an arbitration agreement.

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Subs. by Act 18 of 2018 Sec 10 , Sec 11 (1) Sec 12 (2)(3)(4),Sec 14(3), Sec 20 (3)

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PERSONS FOR OR AGAINST WHOM CONTRACTS MAY BE

SPECIFICALLY ENFORCED
Who Can sue for Specific Performance (Sec-15)
1. Any party to the contract the representative-in-interest (i.e., any assignee, transferee,
administrator, executor etc.)
2. where contract is a settlement on marriage between members of the same family, any
beneficiary, A remainder-man of tenant.
3. A reversioner in possession.
4. A reversioner in remainder.
5. new amalgamated company. the company on behalf of its promoters
Who Cannot sue for Specific Performance (Sec-16)
1. Who would not be entitled to recover compensation for the breach of the contract.
2. Who has become incapable of performing the contract.
3. Who violates any essential term of the contract.
4. Who acts in fraud of the contract Who willfully acts at variance (with relation to the
establishment of the contract).
5. Who fails to show his readiness and willingness to perform the essential terms of the
contract (which are to be performed by him).

DISCRETION AND POWERS OF COURTS SECTION-20(2)

Under the following circumstances, the court may properly exercise its
discretion for no specific performance….

1. Where the contract gives an unfair advantage to the plaintiff over the defendant.
2. Where the performance of the contract would involve some unforeseen hardship on the
defendant, (its non-performance would not cause any hardship to the plaintiff).
3. Where the defendant enters into a contract under the circumstances which amount to
inequitable to enforce the contract specifically.
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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.

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Specific Relief Act 1963

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(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.”

There is a clear distinction between the cases giving rise to the filling of a suit for specific
performance in the event of breach of recitals of an agreement for due performance of
which the parties have covenanted to agree and perform and those which the award of
compensation will be adequate relief.

Damages cannot be ascertained

The rule is based on the uncertainty of calculation of damages in cases where they cannot
be based on anything, but conjecture or surmise. Thus, where agreed to buy, and B agrees
to sell, a picture by a dead painter and two rare China vases, A may compel B specifically
to perform this contract, for, there is no standard for ascertaining the actual damage
which would be caused by its non-performance.

By claiming damages for breach of contract, the plaintiff disentitles himself, on account
of his own election, to treat the contract from claiming specific performance of the same
contract as an alternative case, either originally or subsequently, by way of amendment.
Such conflicting terms are not permitted under OVII, rule 7 of the CPC.

However, a stipulation in a contract to be liable to repay the amount paid and to pay
compensation if the promisor sold the property to another person , does not detract from
the right to specific performanc​e

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Compensation not adequate relief

Specific performance will not granted where compensation is enough relief. Damages
may be considered to be an inadequate remedy. If it is difficult to quantify them. Thus,
specific performance may be ordered of a contract to execute a mortgage for money
advanced.

A contract for execution of the work contracted would fall within the types of contracts
described in this section as specifically enforceable, but the relief is not appropriate and,
therefore, not granted because the work is a kind which a court of justice has no means of
supervising. A court will, therefore, not usually grant this remedy on a contract for
building or engineering work.

Contract to transfer Immovable property

The view that a breach of contract for land cannot be adequately compensated is not
because of the real nature of land, but because damages, even where calculated upon the
general money value of land, may not be a complete remedy to the purchaser, to whom
the land may have a peculiar and specific value.

Contract regarding Movable property

A contract to deliver specific goods will be enforced by way of specific performance if

they are ‘articles of unusual beauty, rarity and distinction or of special value to the party
suing by reason of personal or family association or like.

Presumption
This section raises a presumption that compensation would not be adequate in the case of
transfer of immovable property, and it would be adequate in case of breach of transfer of
movable property. Thus, the party alleging compensation is respectively adequate or
inadequate must prove it.

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Section 12 states,

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 admitting of compensa​tion 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), 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.

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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.
A court will not, as a general rule, compel specific performance of a contract unless it can
execute the whole contract. This section deals with classes of cases in which specific
performance may be granted with or subject to special conditions or restrictions. When a
part of the contract is not capable of performance is always whether the contract can be
executed in substance.

This provision can be invoked only where terms of the contract permit segregation of
interests and rights of parties in the property, and if the intention is to the contrary, the
provision cannot be attracted.

Section 14 of the Specific Reliefs Act (S.R.A.), 1963 provides for certain circumstances
wherein a contract cannot be specifically performed. These have been discussed as
follows:-

Contracts not specifically enforceable.-

Where compensation in money is an adequate relief:
Contracts, the non-performance of which can sufficiently be compensated by the payment
of damages cannot be specifically performed as per S. 14(a) of the Act. For example, a
contract for the supply of commodities is generally not specifically enforceable.

​ Where specific performance of material terms cannot be enforced:

S. 14(b) states that 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.
For example a contract for personal services or employment cannot be enforced by or
against the employer, only damages can be sought.

A contract which is in its nature determinable:

The term determinable suggests a situation where despite the court’s enforcement; the
parties can immediately revert to their original position, thereby making such
enforcement futile. For example, where A and B contract for partnership without

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providing a defined duration, the partnership cannot be enforced as it could easily be

dissolved at once.

A contract the performance of which involves the performance of a

continuous duty which the court cannot supervise:

The difficulty of supervision by the Court is the main reason why due performance in
certain contracts cannot be specifically enforced. Thus the agreement by a landlord to
provide a housekeeper cannot be specifically enforced.

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; or

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

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(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 party.

Conclusion:

Grant relief to the innocent party in the form of damages or specific performance.Specific
performance is an equitable remedy in the law of contract, whereby a court issues an order
requiring a party to perform a specific act, such as to complete performance of the contract. ...
Specific performance is commonly used in the form of injunctive relief concerning confidential
information or real property.

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slideshare.net/helloamaresha/specific-relief

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CASE LAW

Nivarti Govind Ingale & Ors vs Revanagouda Bhimanagouda Patil on 18

November, 1996

Bench: ​K. Pamaswamy, G.B. Pattanaik

PETITIONER:
NIVARTI GOVIND INGALE & ORS.

Vs.

RESPONDENT:
REVANNA GOWDA BHIMANAGOUDA PATIL

DATE OF JUDGMENT: 18/11/1996

BENCH:
K. PAMASWAMY, G.B. PATTANAIK

O R D E R Delay condoned.

Substitution and impleadment allowed.

Leave granted.

We have heard learned counsel on both sides. This appeal by special leave arises from the
judgment and order of the Karnataka High Court, made on January 6, 1992 in RSA No. 933/78.

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indiankanoon.org/doc/1450034​/

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The admitted position is that one Radhabai, mother of the appellants was the owner of 4 acres 38
guntas of land in Paschayapur Village in Bijapur Taluka and District in Karnataka State.
According to her, she, with a view to dig a well in R.S. No. 299, namely, the same land, had
obtained a loan in the year 1961 from the father of the respondent in the sum of Rs. 1,000/-,
Since she was not in a position to complete the digging of the well, she approached again for a
sum of Rs. 2,000/- to complete the well. the respondent's father who is a Constable had advanced
the money on the condition that she would execute the sale deed in favour of his minor son, i.e.,
the respondent. Accordingly, she executed the sale deed with an agreement of reconveyance
which was accordingly executed on August 31, 1961. She stated that she has paid from time to
time a sum of Rs. 7,000/- and she asked the respondent to execute the re- conveyance and the
respondent had not executed the deed of reconveyance. Consequently, she filed the suit for
specific performance. The trial Judge decreed OS No. 4/1966 on the file of the Additional
Munsif, Bijapur on April 3, 1976. On appeal, the Additional Civil Judge allowed the appeal on
November 7, 1977 and dismissed the suit. The second appeal was dismissed by the High Court.
Thus, this appeal by special leave.

The High Court found that since the agreement of re- conveyance was not for the benefit of the
minor, the decree for specific performance cannot be granted. The leave of the court was not
obtained for entering into such an agreement and, therefore, the appellant is not entitled to the
benefit of the specific performance. We find no force in the reasoning of the High Court in the
facts and circumstances of this case. It is seen that appellant's mother is the owner of the
property. She had obtained loan from the respondent and executed the sale deed with an
agreement of reconveyance. When the father of the respondent had obtained the sale deed in the
name of the minor, obviously he is bound by the agreement of reconveyance as well. Having
received the money, he had not executed the sale deed. Necessarily, the appellants are entitled to
seek the specific performance. Under these circumstances, the question that agreement was not
for the benefit of the minor which is a legal proposition, cannot be applied to the facts. It is
contended that subsequent purchaser from the father of the respondent of the self-same property,
without knowledge of the pendency of the suit is bound by the agreement. We find no force in
the contention. The appellants have been seeking the remedy in the civil suit; any subsequent
sale will be barred by the doctrine of lis pendens. Therefore, the subsequent purchaser is bound
by the decree of specific performance and liable to reconvey the property to the appellants. The
decree of the trial Judge is accordingly restored and that of the High Court and the Additional
Civil Judge stand set aside. The remedy of recovery of the purchased money from the respondent
may be sought in an appropriate action.The appeal is accordingly allowed. No costs.

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BIBLIOGRAPHY

1. https://www.slideshare.net/helloamaresha/specific-relief-actppt
2. Specific Relief Act 1963
3. http://www.legalservicesindia.com/article/942/Specific-performance-of-
Contracts.html
4. https://en.wikipedia.org/wiki/Specific_performance
5. https://indiankanoon.org/doc/1450034/

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