Specific Performance & Injunction

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 INDEX
S.No. Content Page no
1 Introduction 4
2 Objective 4
3 Specific Performance & 5
Injunction
4 Conclusion 10
5 Bibliography 10

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INTRODUCTION
A contract is an agreement upon sufficient consideration to do or not to do a particular act.
The party on whom this contractual obligation rests must not fail to discharge such
obligation. In case of his failure, the other party will have a right sue for performance
compelling to perform his Part of Contract. This is called ‘Specific Performance’ Specific
performance is a remedy developed by the principle of equity. Order of specific performance
are granted when damages are not an adequate remedy, and in some specific cases such as
land sale. Such orders are discretionary, as with all equitable remedies, so the availability of
this remedy will depend on whether it is appropriate in the circumstances of the case.
Injunction is an equitable remedy in which a court orders a party to perform, or refrain from
performing, a particular act. A prohibitory injunction is an order forbidding a party from
performing an act; a mandatory injunction is an order to perform an act. An injunction may
be temporary, in place until judgment is entered or permanent, continuing after the
conclusion of proceedings either perpetually or until a specified date.

OBJECTIVES

• To develop further understandings of theories and concepts covered in the course.

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 • To develop a practice of learning new aspects of the subjects and develop a habit of
research related to the subject.

Specific Performance of Contract

There are a few different legal remedies a party may consider when another party has
allegedly breached its contractual obligation, including lawsuits and arbitration. However,
sometimes a monetary remedy doesn't quite make the plaintiff whole, which is the goal of
any civil remedy.
Courts can order defendants in contract disputes to actually perform the contractual duties as
originally agreed if it is determined that money alone cannot resolve the issue. This is called
specific performance.
Specific performance is a specialized remedy used by courts when no other remedy (such as
money) will adequately compensate the other party. If a legal remedy will put the injured
party in the position, he or she would have enjoyed had the contract been fully performed,
then the court will use that option instead. The most common reason courts grant specific
performance is that the subject of the contract is unique, when it's not merely a matter of
money or where the true amount of damages is unclear. When a contract is for the sale of a
unique property, for instance, mere money damages may not remedy the purchaser's
situation.
Example: Rina offers to buy Beth's house and Beth accepts, but later decides to keep the
property. Real estate is considered to be unique. Since there is no other piece of property or
house exactly like Beth's, Rina may be entitled to specific performance on the contract. Beth
would be compelled to go through with the sale.

Requisites for Specific Performance

According to Section 10 of Specific Relief Act 1963 in the following conditions specific
performance of the contract is enforceable:

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 • When there exists no standard for ascertaining actual damage: It is the situation
in which the plaintiff is unable to determine the amount of loss suffered by him.
Where the damage caused by the breach of contract is ascertainable then the remedy
of specific performance is not available to the plaintiff. For example, a person enters
into a contract for the purchase of a painting of dead painter which is only one in the
market and its value is unascertainable then he is entitled to the same.
• When compensation of money is not adequate relief: In following cases
compensation of money would not provide adequate relief:
1. Where the subject matter of the contract is an immovable property.
2. Where the subject matter of the contract is movable property and,
3. Such property or goods are not an ordinary article of commerce i.e., which could be
sold or purchased in the market.
4. The article is of special value or interest to the plaintiff.
5. The article is of such nature that is not easily available in the market.
6. The property or goods held by the defendant as an agent or trustee of the plaintiff.

In Case of Ram Karan v. Govind Lal , an agreement for sale of agricultural land was made
& buyer had paid full sale consideration to the seller, but the seller refuses to execute sale
deed as per the agreement. The buyer brought an action for the specific performance of
contract and it was held by the court that the compensation of money would not afford
adequate relief and seller was directed to execute sale deed in favour of buyer.

Similarly, it was held by the court where the part payment was paid by plaintiff and
defendant admitted that he had handed over all documents of title of property to the plaintiff.
Sale price in an agreement is not low and defendant had failed to establish that said document
was only a loan transaction then the agreement is valid and defendant is liable to perform his
part (M. Ramalingam v. V. Subramanyam).

Contracts which cannot be specifically enforced

According to Section 14 of Specific Relief Act 1963, there are certain contracts which cannot
be specifically enforced and these are:
Where compensation in money is an adequate relief:

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Here the court will not order specific performance of contract as it is expected that the
plaintiff will bank upon the normal remedy for breach of contract i.e., remedy of
compensation.
For example, contract of mortgage of immovable property (Rambai v. Khimji), contract of
sale of goods (Bharat v. Nisarali), contract of repair of premises etc.
Where a contract runs into minutes or numerous detail:
These contracts include contract which depends upon the personal qualification or the
violation of the parties or is of such nature that the court cannot enforce specific performance
of its material terms. In Robinson Davison , it was held by the court that the contract to
perform in concert depends upon the personal kill of defendant’s wife, and the contract
cannot be specifically enforced due to her illness. The other example is construction contract
where the detailed terms of contract are not explained.
Contracts of determinable nature:
Determinable contract means a contract which can be determined or revoked or put to an end
by a party to the contract. For example, in case of partnership at will any partner can retire by
giving notice in writing to other partners and can dissolve the firm.
Contracts which involve the performance of continuous duty which court cannot
supervise:
Earlier under Specific Relief act, 1877 the continuous duty which court cannot supervise is
considered over a period of 3 years which was omitted under Specific Relief Act, 1963 and
no time limit restricted for the performance of a continuous duty. These include contract of
appointment of employees for continuous service or contract to execute sale deed every year.
In Central Bank v. Vyankatesh , the defendant was required to execute deed every year for
the period of 25 years and contract is held to be specifically unenforceable.
Contract of arbitration:
According to Section 14(2), a contract to refer present or future differences to arbitration
shall not be specifically enforceable.

Injunction
An Injunction is an equitable remedy which is “a judicial process that compels a party to
refrain from doing or to do a particular act or thing”. If any person disobeys the Order of
Injunction passed by the Competent Court then there can be stiff monetary penalties and even
imprisonment in certain instances. The primary purpose of granting interim relief is the
preservation of property in dispute till legal rights and conflicting claims of the parties before

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the court are adjudicated. However, Injunction can also be modified or dissolved if
circumstances change in future. Section 94, 95 and Order 39 of the Civil Procedure Code
precisely talks about the Injunctions and whereas, the temporary and perpetual injunctions are
defined under section 36 to 42 of the Specific Relief Act
Following types of Injunctions are granted by the Court.
1. Temporary and Permanent Injunctions (Sections 36 & 37)
2. Perpetual Injunctions (Section 38)
3. Mandatory Injunctions (section 39)
4. Damages in lieu of or in addition to Injection (Section 40)
5. Injunction to perform a negative covenant (section 42).
Temporary Injunction:
The temporary Injunction is been granted by the Court when the Defendant is about to the
make some injury to the property of the Plaintiff or threatens the Plaintiff to dispossess the
property or creates a third party interest in the property, then in such situation, the Court may
grant a temporary injunction to restrain the Defendant to do such an act or make other order
to prevent the dispossession of the plaintiff or prevent the causing of injury to the plaintiff in
relation to any property in dispute or creating any third party rights in the property.
Temporary injunction is an interim remedy that is raised to reserve the subject matter in its
existing condition and which may be granted on an interlocutory application at any stay of
the suit. Its purpose is to prevent the suspension of the plaintiff’s rights.

Permanent Injunction
At the time of final judgement issues the permanent injunction for granting a final relief to
the applicant. These injunctions remain constant if the conditions that produced them are
permanent.
In the case of Jujhar Singh vs. Giani Talok Singh where a permanent injunction was sought
for by a son to prevent his father who happened to be the Karta of the Hindu Undivided
Family (HUF), from selling the HUF property was set aside. It was not maintainable because
the son, also a coparcener, had got the remedy of challenging the sale and getting it set aside
in a suit subsequent to the completion of the sale.
On the other hand, granting the injunction sought would allow the son to use the injunction to
prevent the father from selling the property even if he is compelled to do so, due to legal
necessities.

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Where in the case of Cotton Corporation Of India vs. United Industrial Bank, an
injunction was sought for to restrain the defendants from presenting a winding-up petition
under the Companies Act, 1956 or under the Banking Regulation Act, 1949, the court
dismissed the petition as it was not competent to grant, as a relief, a temporary injunction
restraining a person from instituting a proceeding in a court not subordinate to it.
The court here was of the view that if a perpetual injunction cannot be granted for the subject
matter of the case under Section 41(b) of the act, ipso facto temporary injunction cannot be
granted.
Perpetual Injunctions
Perpetual Injunctions may be granted, at the discretion of the court, to prevent the breach of
an obligation existing in the plaintiff’s favour, whether expressly or by implication.
Whenever the defendant invades or even threatens to invade the plaintiff’s right to property
or the enjoyment thereof, the court may grant a Perpetual Injunction to the plaintiff in the
following four cases;
1. Where the defendant is a trustee of the property for the plaintiff.
2. Where there is no standard for ascertaining the actual damage caused, or likely to be
caused, to the plaintiff, by invasion of his rights.
3. Where the invasion of the plaintiff’s right is such that compensation in money would not
afford adequate relief.
4. Where injunction is necessary to prevent multiplicity of judicial proceedings.
If the payment of damages will not adequately compensate the plaintiff, the court will grant
an injunction, unless there is special reason against it. The court may refuse injunction and
award damage in the following cases, if the injury is (i) small and (ii) capable of being
estimated in money and being adequately compensated by a sum of money and grant of
injunction would be oppressive. An injunction may also be refused on the ground of the
plaintiff’s acquiescence and delay. Similarly, injunctions should not be granted where they
inflict more injury on the person sought to be injected than advantage on the applicant as
decided in the case of Tituram V. Cohen.
Mandatory Injunction
A mandatory injunction forbids a defendant from continuing a wrong act that has already
occurred at the time when the injunction is issued. The purpose of a mandatory injunction is
to restore a wrongful state of things to the rightful order.
For example, a mandatory injunction makes the defendant deliver possession of a property to
its rightful owner.
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When issuing a mandatory injunction, the Courts would take into consideration, whether the
plaintiff could be adequately compensated or whether the grant of an injunction was
necessary to do justice. Lane V New gate, a lased his land to B for erecting a mill and bound
himself to supply water thereto from canals and reservoirs on his own land. An impeded the
enjoyment of water by B, by keeping works out of repair by the use of locks, and by
removing the stop-gate. B asked for an injunction which was granted. In this case affirmative
covenants were enforced.
Damages in lieu of, or in addition to, injunction (section 40)
When a plaintiff sues for Perpetual Injunction or a Mandatory Injunction, he may also claim
damages, either in addition to, or in substitution for, the injunction, and the court, if it thinks
fit, award such damages.
An injunction or damage are not alternate remedies but can be granted at the discretion of the
court.
The damages cannot be granted unless the plaintiff has claimed damages in the plaint or in
proceedings, he will be allowed to amend the plaint by incorporating clause for damages.

Injunction to perform a negative covenant

some time in a given contract, there may be affirmative agreement to do certain act, coupled
with a Negative Covenant, express or implied, not to do a certain other act. Now the fact that
the court is unable to compel specific performance of the affirmative part does not mean that
it cannot grant an injunction in respect of the negative part. It is necessary in this case that the
plaintiff has performed its part mentioned in the contract.

CONCLUSION
Specific performance of contract and injunction both are weapons in hands of judiciary to
protect the rights of plaintiff when there is no adequate remedy in law present which could
prevent the rights of plaintiff through specific performance court can ensure that the other
party to contract perform their contractual obligation and through injunction court can
prevent plaintiff from irreparable damage. Both are based on principle of equity and exists on
the discretion of court .

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BIBLIOGRAPHY
• Avtar Singh, Law of Contract and Specific Relief, Eastern Book Company, 2013 (11th Edn)
• Pollock & Mulla, The Indian Contract and Specific Relief Act, Lexis Nexis, 2013(14th Edn)
• www.legalserviceindia.com
• www.casemine.com
• www.livelaw.in

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