Professional Documents
Culture Documents
PAPER SUBMITTED
on the topic
ALTERNATIVE REMEDIES FOR
SPECIFIC PERFORMANCE OF
CONTRACTS
by
Dr.H Amara Rangeswara Rao,
Junior Civil Judge cum
Judicial Magistrate of First Class,
Alamuru, E.G.Dt.,
2
Table of Contents
Introduction................................................................................. 3
What is specific performance of a contract?.............................4
Discretionary Power- inadequacy test:.....................................4
Discretion as to decreeing specific performance: [OLD]............5
Justice, equity, and good conscience are guiding principles......6
Balance of convenience test....................................................8
Parties conduct test...............................................................9
Whether the inadequacy test is adequate :............................11
Burden of proof - Heavy Burden to prove...............................13
Alternative remedies for Specific Performance of Contracts:.........13
Power to award compensation in certain cases: (OLD)............13
Provision of contract providing for liquidated damages, does not
bar jurisdiction of the Court to grant decree of specific
performance........................................................................14
It is open to a plaintiff to pray for inconsistent reliefs.............15
Substitution of new cause of action is not permissible............15
Recession of the contract......................................................16
Principles of granting alternative relief..................................18
Are the alternatives are efficient and sufficient ?..........................20
Why specific performance shall be the right...........................20
Grant of damges shall be exception.......................................21
Demand for removal of inadequacy test.................................21
Shift from discretionary to mandatory...................................22
Substituted performance :..........................................................23
Substituted performance of contract : [NEW].........................23
What Section 20 (new) of the Act provides:............................23
Power to award compensation in certain cases: (NEW).................24
Whether the enforcement of the amendment is prospective or
retrospective?............................................................................26
Section 6 of the General Clauses Act :....................................26
3
ALTERNATIVE REMEDIES FOR SPECIFIC
PERFORMANCE OF CONTRACTS
Dr. H.AmaraRangeswara Rao,
*
Introduction
‘Ubi jus,ibi remedium’ denotes where there is a right, there is a remedy. In
the era of Globalization, a strong contract enforcement system is essential
for the smooth flow of trade and commerce, and for developing
confidence of investors. Globally the approach to contract law remedies
are either: (i) compelling performance, by holding parties to their
contract through grant of specific performance and injunctive reliefs, or
(ii) compensating for loss and damages caused by breach of contract,
with specific performance being in the nature of exception rather than
the rule. A contract being a correlative set of rights and obligations for the
parties would be of no value, if there were no remedies to enforce the rights
arising there under. The remedies for breach of contract are:
1. Suit for damages or compensation
2. Suit for specific performance
3. Suit for injunction
4. Suit for rescission
5. Punitive damages
The law on this issue is dealt with in two statues viz., The Specific Relief
Act, 1963 and The Indian Contract Act, 1872. The approach relating to
specific performance has been preferred in India under the Specific Relief
Act, 1963.
*Junior Civil Judge cum Judicial Magistrate of First Class, Alamuru, E.G.Dt.,
4
losses he has suffered by the breach, nor will such amounts claimed be
awarded to him. Proving losses with certainty is difficult. A decree for
compensation may not give to the promisee the equivalent of the promise
that is broken. A decree of specific performance comes closest to
protecting this interest it gives the promisee what was promised.
Specific performance is an 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 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.
Discretionary Power inadequacy test:
Amendment Act, the courts are bound to enforce the specific performance of
a contract as a rule, subject to limited exceptions.
Discretion as to decreeing specific performance: [OLD]
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
nonperformance 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.
Explanation 1 : Mere inadequacy of consideration, or the mere fact that
the contract is onerous to the defendant or improvident in its nature,
shall not be deemed to constitute an unfair advantage within the
meaning of clause (a) or hardship within the meaning of clause (b).
contract merely on the ground that the contract is not enforceable at
the instance of the party.
Justice, equity, and good conscience are guiding principles
Currently, Section 20 of the Act lays down that specific performance is a
discretionary remedy, and specifies certain nonexhaustive situations in which
specific performance is not to be granted. While Courts have opined that
discretion is not to be exercised arbitrarily, and is to be exercised only on the
basis of sound judicial principles, the scope of the discretion is considerably
wide. The basic tenets on the basis of which discretion is to be exercised are
"justice, equity, and good conscience. A.C. Arulappan v. Ahilya Naik.1 This
leads to a lack of certainty for those asking for this remedy, and creates the
need for limiting this discretion.
As per the provisions of Sec.10 of the Act, as contained in Chapter II of
the Act, the specific performance of any contract may, in the discretion of the
Court, be enforced
(a) when there exists no standard for ascertaining actual damage caused
by the nonperformance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money
for its nonperformance would not afford adequate relief.
As per Explanation added to sec.10 of the Act, unless and until the
contrary is proved, the Court shall presume that the breach of a contract to
transfer immovable property cannot be adequately relieved by compensation in
money, It is a case of immovable property, breach on the part of the defendants
is well proved and in such circumstances, specific performance should be
enforced unless the case of the plaintiff is covered by any of the exceptions as
contained in Sec.12 or 16 of the Act.
In Ram Dass v. Ram Lubhaya2 it was held that the principle of equity,
good conscience and fairness is the foundation of grant of relief of specific
performance. The object of Section 20 of the Specific Relief Act is to avoid
resultant undue hardship to one party while avoiding undue gain to the other.
Mere lapse of time and in adequate consideration are no grounds to exercise
discretion under Section 20 because Section 20 is an exception to the rule of
grant of relief of specific performance. Once lawful agreement is proved, equity
1AIR 2001 SC 2783.
21998(2) R.C.R. (Civil) 642,
7
would demand enforcement of an agreement rather than grant of alternative
relief of damage if the plaintiff was always ready and willing to perform his part
of the contract. Equity has to be balanced. If the defendant was guilty of the
breach of agreement he cannot be held entitled to any protection of equity.
"The principles of law enunciated in these cases is the reiteration of settled
principles of law. The principles of equity, good conscience and fairness being
very foundation for grant of relief of specific performance is the concept not
introduced by judicial pronouncement but explicitly indicated by the
Legislature in the provision of Section 20 of the Specific Relief Act. The very
language of Section 20 spells out and indicates the wide discretion that is
vested in the Court of competent jurisdiction to grant or decline to grant a relief
of specific performance for transfer of immovable property. The guiding
principles for determination of such controversies have been consistently
cogitated by various Courts but to a common end. The common goal sought to
be achieved is to avoid resultant undue hardship to one party while avoiding
undue gain to the other by mere lapse of time attributable to erring party."
The jurisdiction vested in the Court to decline specific performance and
grant alternative relief is a jurisdiction of equity and good conscience and must be
exercised in consonance of the settled principles of law. Even principles emerging
from judicial verdicts which are to guide the courts concerned while passing such
a decree and which have been specifically acted upon, are still open to correction
by the court of appeal. The provisions indicate the intention of the Legislature to
vest the Court with the wide discretion but still define the extent of caution with
which such power should be exercised. Settled canon of limitations on the
discretion of the court have been well defined by various judicial pronouncements.
Precept of equity are accepted good in law. Reliefs in equity are founded on the
principle of good conscience and grant of effective relief. The maxim Actio de in
rem verso appears to be the underlining feature under the provision of Section 20
3 (19983)120 P.L.R. 525,
8
of the Act. Exercise of judicial discretion does not admit a limitation extending to a
prohibition for grant of relief of specific performance. It is only where the judicial
conscience of the court is pricked to an extent that the Court first is able to see
inequities, imbalances created against one party and in favor of other, that it
would consider exercising its discretion under these provisions. The scheme of this
Act clearly shows that where a contract is proved in accordance with law and party
has acted without undue delay and has pursued its remedy in accordance with
law without infringing the settled canon of equity the grant of specific relief by
enforcing the contract would certainly be a relief which equity would demand.
Balance of convenience test
Performance of contract involving some hardship on the defendant, which
he did not foresee, while nonperformance involving no such hardship on the
plaintiff is one of the circumstances, in which, the Court may properly exercise
discretion not to decree specific performance suit arbitrarily. Ordinarily, the
respondent/plaintiff is not to be denied the relief of specific performance on
account of phenomenal increase in price during the pendency of litigation As a
general rule, only the respondent/plaintiff alone cannot be allowed to have the
entire benefit of the increase in value of the property pending lis. The test is to see
who is the defaulting party. Only the totality of the circumstances have to be seen.
Inadequacy of consideration or the fact that the contract is onerous to the
defendant is not sufficient to deny the relief of specific performance.
"11. ... May be, the parties knew of the said circumstance but they have
also specified six months as the period within which the transaction
should be completed. The said timelimit may not amount to making
4 [(1997) 3 SCC 1],
9
time the essence of the contract but it must yet have some meaning.
Not for nothing could such timelimit would have been prescribed. Can
it be stated as a rule of law or rule of prudence that where time is not
made the essence of the contract, all stipulations of time provided in
the contract have no significance or meaning or that they are as good
as nonexistent? All this only means that while exercising its discretion,
the court should also bear in mind that when the parties prescribe
certain timelimit(s) for taking steps by one or the other party, it must
have some significance and that the said timelimit(s) cannot be ignored
altogether on the ground that time has not been made the essence of
the contract (relating to immovable properties).
Parties conduct test
“The basic principle behind Section 16(c) read with Explanation (ii)
is that any person seeking benefit of the specific performance of
contract must manifest that his conduct has been blemishless
throughout entitling him to the specific relief. The provision imposes a
personal bar. The court is to grant relief on the basis of the conduct of
the person seeking relief. If the pleadings manifest that the conduct of
the plaintiff entitles him to get the relief on perusal of the plaint he
should not be denied the relief. (See Aniglase Yohannan v. Ramlatha
and ors. [2005(7) SCC 534].”
In Lourdu Mari David v. Louis Chinnaya Arogiaswamy,6 the issue
before the Supreme Court was regarding the specific performance of the
agreement to sell the property. The suit filed by the plaintiff was dismissed by
the trial Court on the ground that the property was sold to a bona fide
purchaser for value without notice. The decree was confirmed in first appeal. In
the further appeal before the Division Bench, a finding was rendered to the
effect that the plaintiff has not come to the Court with clean hands. When the
matter was taken up before the Supreme Court, it was found that false
contentions were raised by the plaintiff in the suit. The Supreme Court was of
the view that specific performance being an equitable relief, any party who
5 [(2007) 14 SCC 415]
6 [(1996) 5 SCC 589]
10
comes to the Court with unclean hands should be denied the remedy. The
relevant paragraph would read thus:
"2.It is settled law that the party who seeks to avail of the equitable
jurisdiction of a court and specific performance being equitable relief,
must come to the court with clean hands. In other words the party who
makes false allegations does not come with clean hands and is not
entitled to the equitable relief."
In Umabai and another vs. Nilkanth Dhondiba Chavan (dead) by Lrs
and another,7 necessity to produce some evidence to show that the plaintiff
was in a position to arrange the balance sale consideration was indicated by
the Supreme Court thus :
"33. ... There must, thus, be some evidence to show that the plaintiff
could arrange for the amount stipulated for payment to the vendor as
and when called upon to do so."
Thus, the jurisdiction vested in the Court to decline specific performance
and grant alternative relief is a jurisdiction of equity and good conscience and
must be exercised in consonance of the settled principles of law. Even
principles emerging from judicial verdicts which are to guide the courts
concerned while passing such a decree and which have been specifically acted
upon, are still open to correction by the court of appeal. The provisions indicate
the intention of the Legislature to vest the Court with the wide discretion but
still define the extent of caution with which such power should be exercised.
Settled canon of limitations on the discretion of the court have been well
defined by various judicial pronouncements. Precept of equity are accepted
good in law. Reliefs in equity are founded on the principle of good conscience
and grant of effective relief. The maxim Actio de in rem verso appears to be the
underlining feature under the provision of Section 20 of the Act.
Exercise of judicial discretion does not admit a limitation extending to a
prohibition for grant of relief of specific performance. It is only where the
judicial conscience of the court is pricked to an extent that the Court first is
able to see inequities, imbalances created against one party and in favor of
other, that it would consider exercising its discretion under these provisions.
The scheme of this Act clearly shows that where a contract is proved in
accordance with law and party has acted without undue delay and has
pursued its remedy in accordance with law without infringing the settled canon
7 [2005(6) SCC 243]
11
of equity the grant of specific relief by enforcing the contract would certainly be
a relief which equity would demand. The Legislative intention behind Section
20 cannot be stated to be that a party first fails to perform its part of the
agreement later contests litigation on frivolous basis then that party cannot be
permitted to raise a plea in equity that value of the property has increased
disproportionately resulting in an undue advantage to the plaintiff in a suit.
Resultantly it would not be fair to deny specific performance against such a
party.
A lawful agreement being proved and judicial conscience of the court being
satisfied the equity would demand enforcement of an agreement rather than
granting an alternative relief of damages to the plaintiff. It need not be reiterated
that equity must give relief where equity demands. Equitas nuquam liti
ancillatur ubi remedium potest dare is a clear illustration which has been duly
accepted by the Indian Courts. The time taken by the courts in deciding suit or
appeals would normally be not permitted to work to the disadvantage of the party
to the lis. Acts of the courts shall cause prejudice to none was so stated by the
Hon'ble Apex Court in the case of Atma Ram Mittal v. Ishwar Singh Puniab.8 In
the said judgement it was observed that actus curiae neminem gravabit and
held that once rights are crystallised, the adjudication must be in accordance with
law
Whether the inadequacy test is adequate :
The inadequacy test does not permit the remedy of specific
performance (or injunction) for every contract. By operation of a
8 (1988) 4 SCC 284].
12
presumption, it is in fact, and is considered to be, generally available for
contracts to transfer immovable property. In the case of contracts to
transfer movable property, the presumption operates to cast contracts
into types or categories. Specific performance thus gets granted for
certain types or classes of contracts. In other classes, viz., contracts other
than for transfer of property, a plaintiff has to satisfy the inadequacy test. The
origin of this test lies in the history of English law. Equity courts could give
these reliefs only in those matters where compensation was not an adequate
remedy.
The operation of the inadequacy test renders uncertain whether the
remedy will be available. The possibility of exercise of court's discretion under
section 20 of the Act increases this uncertainty. Some legal systems
(Denmark, France, Germany, Louisiana (USA), Quebec (Canada), Spain ) do not
prescribe the test. Some common law systems have relaxed the test.
International conventions do not have this precondition (Principles of European
Contract Law; UNIDROIT Principles )( Restatement (Second) of Contracts
(1981), Chapter 16, Introductory Note. ). Academic writing suggests that the
test be removed. One view is that the test is dead.(Douglas Laycock, 'The
Death of the Irreparable Injury Rule' (1990) 103 Harv LR 687; see para 7.)
Where the legal system prefers compensatory relief, the promisor has an
incentive to break his contract if such course of action is more beneficial for
him than performing it. Economic analysis" endorses such efficient breach. It
has been observed: 'The duty to keep a contract means a prediction that you
must pay damages if you do not keep it and nothing else'. (Oliver
WendeHlomes' Path of the Law'(1997)3D If the legal system were to make
available specific performance or injunction as a natural remedy to the
promisee, parties to the contract will consider themselves bound to perform it.
Such provisions will affect contractual behaviour, and will encourage
performance, 'and will discourage breach.
The exceptional nature of specific relief arises from the inadequacy test.
It is justified on many grounds. A strong justification is made on the basis of
economic analysts," which recommends breach when it is efficient. When
compensation is the primary remedy and specific performance is exceptional,
the promisor is able to break the contract when it is more beneficial for him
than performing it. The promisee is expected to get compensated for his loss,
and get into the same position as if the promise is performed. In this view,
specific performance is efficient only when the promisee cannot find a
13
substitute. This view assumes that the promisee can calculate all his losses,
and that a decree for compensation will not fully compensate his losses.
However, there is also ample support in terms of economic analysis for routine
availability of speedy performance."
Burden of proof Heavy Burden to prove
Inadequacy, or lack of it, must be proved." It falls naturally on the plaintiff
seeking specific performance or injunction to prove that compensation will be
inadequate, having first proved the contract, its terms, and its breach. If it is a
contract for transfer of immovable property, the presumption assists him, shifting
the burden on the defendant to show adequacy of compensation." If it is a contract
for transfer of movable property, the plaintiff must show circumstances that will
satisfy the presumption of inadequacy, i.e. thatthe goods are unique, or have
special value for him, or are not an ordinary article of commerce, or are not"
available in the market." In all other cases, he must show that compensation
would be inadequate. There are difficulties in establishing this test. Inadequacy
often gets decided as a matter of inference, and depends on the individual
perception of the judge.
(1) In a suit for a specific performance of a contract, the plaintiff may also
substitution of, such performance.
(2) If, in any such suit, the court decides that specific performance ought
not to be granted, but that there is a contract between the parties
which has been broken by the defendant, and that the plaintiff is
entitled to compensation for that breach, it shall award him such
compensation accordingly. If, in any such suit, the court decides that
specific performance ought to be granted, but that it is not sufficient to
satisfy the justice of the case, and that some compensation for breach
of the contract should also be made to the plaintiff, it shall award him
such compensation accordingly.
(3) In determining the amount of any compensation awarded under this
section, the court shall be guided by the principles specified in section
73 of the Indian Contract Act, 1872.
(4) No compensation shall be awarded under this section unless the
plaintiff has claimed such compensation in his plaint:
PROVIDED that where the plaintiff has not claimed any such
compensation in the plaint, the court shall, at any stage of the proceeding,
allow him to amend the plaint on such terms as may be just, for including a
claim for such compensation.
Explanation: The circumstance that the contract has become incapable of
specific performance does not preclude the court from exercising the
jurisdiction conferred by this section.
9 [AIR 1973 SC 2457]
15
contract to transfer movable property can be thus relieved."
It is open to a plaintiff to pray for inconsistent reliefs
Under 0rder VII R. 7, Civil Procedure Code the plaintiff is entitled to
claim a relief in the alternative on the facts stated in the plaint and it was
open to him to pray to the Court to award damages or recision of the
contract may be granted if the Court did not accept his case for grant of
specific performance. Under 0. 7, r. 7, Civil Procedure Code it is open to a
plaintiff to pray for inconsistent reliefs.
Substitution of new cause of action is not permissible.
10 [(2004) 6 SCC 649 ]
11 (1999) 7 SCC 703
12 (2000) 10 SCC 636
13 (2007) SLT 704
16
set up to recover the amount but subsequently, if he wants to claim specific
performance of the contract. It would amount to abandoning the original
claim and, as such, amendment of the plaint, if allowed, would certainly
amount to substituting the relief as well as cause of action, which would
cause serious prejudice to the defendants. This proposition of law arose in
Roop Chand Chaudhari v. Smt. Ranjit Kumari,14 wherein it was held as
under:
"While a suit to claim first relief of specific performance with
alternative relief of declaration/damages is permissible, converse is
not true. Once a suit for return of the earnest money/advance or
grant of damages is filed, such a plaintiff disentitles himself to the
alternative relief of specific performance even if claimed in the suit.
He cannot be allowed to amend his plaint later on to claim specific
performance of the contract as the first relief and return of earnest
money/advance and/or damages as an alternative relief. This is
primarily on the rule that a claim for return of earnest
money/advance and/or damages can be based on repudiation of the
contract for one reason or the other and once the contract is
repudiated, the relief of specific performance would not be available
either as an alternative relief nor would such a relief be admissible by
amendment."
Recession of the contract
Section 37 of the Specific Relief Act expressively provides for filing the
suit for specific performance with an alternative plea for recession of the
contract but the converse is not provided. Similarly, a mere reading of the
Specific Relief Act would show that the plaintiff sueing for recession of the
contract may not sue in the alternative for specific performance.
In this connection reference may be made to s. 37 of the Specific Relief Act 16
14 [AIR 1991 (P&H) 212],
15 1999 (1) PLR 314
16 (Act No. 1 of 1877)
17
which is to the following effect :
"A plaintiff instituting a suit for the specific performance of a contract
in writing may pray in the, alternative that, if the contract cannot be
specifically enforced, it may be rescinded and delivered up to be
cancelled; and the Court, if it refuses to enforce the contract
specifically may direct it to be rescinded and delivered up
accordingly."
It is expressly provided by this section that a plaintiff suing for specific
performance of the contract can alternatively sue for the rescission of the
contract but the converse is not provided. It is therefore not open to a plaintiff
to sue for rescission of the agreement and in the alternative sue for specific
performance. Section 35 of the Specific Relief Act, 1877 states the principles
upon which the rescission of a contract may be adjudged. But there is no
provision in this section or any other section of the Act that a plaintiff suing for
rescission of the agreement may sue in the alternative for specific performance.
In our opinion, the omission is deliberate and the intention of the Act is that no
such alternative prayer is open to the plaintiff. This view is borne out by the
following passage in "Fry on Specific Performance,17
"It remains to remark that the plaintiff, bringing an action for the
specific performance of a contract, may claim in the alternative that,
if the contract cannot be enforced, it may be rescinded and delivered
up to be cancelled, provided that the alternative relief is based on the
same state of facts, 'though with different conclusions as to law.
When the action is brought by the vendor, and the purchaser has been
in possession, this alternative claim may embrace an account of the rents
and profits. Bu t, for the reason already stated, a suit to set aside a
transaction for fraud or, in the alternative, for specific performance of a
compromise could not be sustained in the Court of Chancery. And
notwithstanding the provisions of the Rules of the Supreme Court as to
alternative claims for relief, it seems probable that the same conclusion
would still be arrived at, on the ground that the claims were inconsistent and
embarrassing."
17. 6th Edn.', p. 493" :
18
Principles of granting alternative relief
In Kanshi Ram vs. Omprakash 18 it was held that in
working out equities, courts would in appropriate cases grant
alternative relief instead of granting decree for specific
performance.
In, “Balasaheb Dayandeo Naik Vs. Appasaheb Dattatraya Pawar 20
the Hon'ble Apex Court held that, the plaintiff is entitled to seek alternative
relief of refund of earnest money in event of decree for specifc performance
cannot be granted for any reason.
In, “P.C. Varghese Vs. Devaki Amma Balambika Devi” 21 the Hon'ble
Apex Court held that, Decree for partition and separate possession of property
can be granted in addition to decree for specific performance of contract.
Section 22 enacts a rule of pleading that in order to avoid multiplicity of
proceedings, the plaintiff may claim a decree for possession and or partition in
a suit for specific performance, ordinarily, a proceeding for grant of a final
decree for partition should be initiated after the sale deed in terms of the
decree for specific performance of contract is executed registered and not
viceversa.
Hon'ble Supreme Court in Babu Lal v. M/s.Hazari Lal Kishori Lal,22
was of the view that when the court grants a decree for specific performance,
what it promises to do is all such things as the parties would have been
bound to do had this been done without the intervention of the Court.
Therefore, when the decree for execution of a sale deed is realised, it pre
supposes that the decree holder would be put in possession. In
K.M.Rajendran v. Arul Prakasam,23 wherein it is held that in a suit for
18 (AIR 1996 S.C 2150)
19 [2010(1)ALT 89].
20 [2008 A.I.R. SCW 1183]
21 [2006 A.I.R. (SC) 145],
22 [AIR 1982 SC 818],
23 1998 (3) CTC 25: AIR 1998 Mad 336
19
24 AIR 1996 Bom. 296,
20
necessary to consider the circumstances in case in each case the conduct of
parties and the respective interest under the contract.
Further, in a breach of contract, recovery of possession of Property.
Rectification and cancellation of Instruments, preventive relief, declaratory
relief and Suit for quantum merit are some other modes of the alternative
remedies.
Are the alternatives are efficient and sufficient ?
Under the present law, a plaintiff is required to seek, plead and prove his
alternative claim for compensation in his suit for specific performance." Under
the existing law, compensation in suits for specific performance are assessed
with reference to section 73 of the Indian Contract Act, and are assessed at the
time of breach. Case law suggests that a court can assess compensation with
reference to a later date.
As noted earlier, the present system compels the victim of breach to
justify his claim so that he can get the benefit of his contract. The initial
burden of proof lies on him to show nonexistence of substitutes. This negative
burden is a difficult one to discharge. It is expected that if the promisee has
substitutes available, he will avail of that opportunity. If he suffers loss, he will
claim compensation. He will aim to complete his business. The law should also
encourage him to do so because this course of action will achieve for the
promisee the completion of his task, leaving him free to claim compensation if
his loss is substantial enough to warrant filing litigation.
Why specific performance shall be the right.
Where specific performance is not available as a right, but is based on
the Court's finding about inadequacy or satisfaction of other criteria for grant
of equitable relief, the plaintiff can never be sure about the remedy. Moreover,
when the defendant can change the situation and make transactions pending
litigation, enforcing an order of specific performance becomes more difficult.
Many a defendant has pleaded rise in prices as a defence in a suit for specific
performance." Circumstances can be created in such manner that a plaintiff's
rights can be defeated by events after the suit. Where specific performance lies
in discretion of the Court, and is not available as a right, the breaching
promisor can continue to hope for forgiveness of his breach and avoid specific
performance by making offers and seeking compromises pending litigation."
He might also hope for a settlement in Court discounting breach." The party
who has the stamina and resources to keep litigation going can hope for such
indulgence from the higher courts. When specific performance is routine/
21
promisors will refrain from changing the state of affairs pending proceedings. It
is therefore essential that the rights of the aggrieved party should remain
unaffected by the progress of and time involved in litigation.
If a promisee has the right to receive the amount he has spent, he will be
able to obtain cover and will prefer to do so with confidence. He will seek the
amount spent by him for obtaining substitute performance, as an effective
alternative to specific performance. He will have the benefit of his contract very
close to the time fixed for performance in the contract, rather than having to
wait for the decree of specific performance.
Further, if the promisor knows that the promisee can exercise such a
right at the promisor's cost, the promisor is likely to perform himself. Such
provision will match the legal provision that generally allows a promisor to
delegate the task of performing the act promised. Such a scheme also
complements the system that recognizes the inadequacy test, and can be
provided even if the inadequacy test is retained. However, the promisee might
abuse his right and create a heavy burden on the promisor. This can be
prevented by requiring him to give an opportunity to the promisor, and notice
to promisor about the cost of substitute performance that the promisor would
have to bear.
A study about applying the inadequacy test (or its relative the
irreparable loss test in interim matters) concludes that the test is applied
without appropriate analysis, and judgments deciding inadequacy without
giving reasons," and based on inferences rather than facts." The study also
concludes that the inadequacy test is granted in many situations and cases for
protection of monetary interests." If specific performance and injunction are no
longer exceptional, courts can deal with such cases with a consistent
approach.
Demand for removal of inadequacy test
present law." This is actually also the strongest justification of relaxing the
grant of specific relief." If the promisee has the choice of his remedy, he will
choose compensation after obtaining substitutes. He will also ask for
compensation where he expects the promisor to be reluctant or hostile, where
the performance will require supervision not available from the court, or where
he cannot suspend his affairs pending orders from the court. He will choose
specific performance only if there is no substitute, either because the subject
matter is not available, or is of special value to him, and where he is willing to
wait for relief till execution of the decree. Hence there need not be any fear of
increase in litigation and administrative costs.
The legislators thought that If the inadequacy test is removed, the
promisee can choose his own remedy. The promisee is the best judge of his
own interest, and whether substitutes satisfy his needs. He has more
information than the courts whether compensation is adequate, what it would
cost him to get specific performance, and whether his promisor will obey the
decree." He is unlikely to sue for specific performance if he finds a substitute or
where compensation will be adequate.
Such a regime will change contract behaviour, encourage performance of
contracts, and will deter breach. It will ease the burden of proof that presently
lies on the promisee, who has already suffered by the breach. It will also
encourage parties to think enante about remedies, and make appropriate
provisions in their contracts choosing remedies.
Shift from discretionary to mandatory
In view of the afore stated reasons, three major changes are suggested in
the recommendations contained in a Report submitted by an Expert Committee
to the Government of India in 2016 :
(i) Specific performance and injunction should no longer be an
exceptional remedy, but should be available to any promisee who
seeks these reliefs, whether through courts, tribunals, or in
arbitration. Interference with these remedy in exercise of
discretionary powers of the court should be minimal, and on specific
grounds only.
(ii) If the promisor refuses or fails to perform his promise, the
promisee should be entitled get the performance completed through
a third party, at the cost of the promisor.
(iii) Where a promisee seeks specific performance, his interests
should not be prejudiced by passage of time during litigation. His
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interests should be protected by appropriate interim orders.
Accordingly the following amendments were made to the Act
Substituted performance :
In THE SPECIFIC RELIEF (AMENDMENT) ACT, 2018, Section 20 of the
old Act was totally substituted with the new provision as shown below. It
provides an alternative to the party who suffers by breach of contract to go for
substituted performance through a third party or by his own agency, and he
can recover the expenses and other costs actually incurred, spent or suffered
by him, from the party committing such breach, subject to conditions
mentioned below.
Substituted performance of contract : [NEW]
(5) Without prejudice to the generality of the provisions contained in the
Indian Contract Act, 1872 (9 of 1872), and, except as otherwise agreed
upon by the parties, where the contract is broken due to non
performance of promise by any party, the party who suffers by such
breach shall have the option of substituted performance through a
third party or by his own agency, and, recover the expenses and other
costs actually incurred, spent or suffered by him, from the party
committing such breach.
(6) No substituted performance of contract under subsection (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 subsection (1) unless he has got the
contract performed through a third party or by his own agency.
(7) Where the party suffering breach of contract has got the contract
What Section 20 (new) of the Act provides:
through a third party or by his own agency PROVIDED, he 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
He can recover the expenses and other costs actually incurred, spent
or suffered by him, from the party committing such breach.
The party who suffers such breach shall not be entitled to recover the
expenses and costs under subsection (1) unless he has got the contract
performed through a third party or by his own agency.
Where the party suffering breach of contract has got the contract
performed through a third party or by his own agency after giving
notice under subsection (1) i.e., substituted performance, then he
shall not be entitled to claim relief of specific performance against the
party in breach, as he has already got the contract performed through
third party or by his own agency. At this point he can only claim to
recover the expenses and other costs actually incurred, spent or
suffered by him, from the party committing such breach.
If the party suffering breach of contract has not opted for substituted
performance, then he can claim the relief of specific performance.
Further if he intends to claim compensation, then he can claim
compensation as an additional relief to that of specific relief, but not as
an alternative relief.
Power to award compensation in certain cases: (NEW)
(1) In a suit for specific performance of a contract, the plaintiff may also
claim compensation for its breach [in addition to] 1 such performance.
(2) If, in any such suit, the court decides that specific performance ought
not to be granted, but that there is a contract between the parties
which has been broken by the defendant, and that the plaintiff is
entitled to compensation for that breach, it shall award him such
compensation accordingly.
(3) If, in any such suit, the court decides that specific performance ought
to be granted, but that it is not sufficient to satisfy the justice of the
case, and that some compensation for breach of the contract should
also be made to the plaintiff, it shall award him such compensation
accordingly.
(4) In determining the amount of any compensation awarded under this
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section, the court shall be guided by the principles specified in section
73 of the Indian Contract Act, 1872. (5) No compensation shall be
awarded under this section unless the plaintiff has claimed such
compensation in his plaint:
PROVIDED that where the plaintiff has not claimed any such
compensation in the plaint, the court shall, at any stage of the
proceeding, allow him to amend the plaint on such terms as may be
just, for including a claim for such compensation. Explanation : The
circumstance that the contract has become incapable of specific
performance does not preclude the court from exercising the
jurisdiction conferred by this section.
As per Section 21, in a suit for specific performance of a contract, if the
plaintiff claimed specific relief in addition to compensation, then:
If the court is of the opinion that specific performance should not to be
granted, but there is a breach of contract between the parties and that the
plaintiff is entitled to compensation for that breach, then the court shall
award him such compensation accordingly.
If the court is of the opinion that specific performance should be granted,
but that it is not sufficient to satisfy the justice of the case, and that some
compensation for breach of the contract should also be made to the
plaintiff, then court shall award him such compensation along with the
specific relief.
The amount of any compensation awarded under this section shall be
guided by the principles specified in section 73 of the Indian Contract Act,
1872.
Unless the plaintiff has claimed the compensation specifically, No
compensation shall be awarded to the plaintiff. If the plaintiff has not
claimed any such compensation in the plaint, at any stage of the
proceeding the plaint can be amended and can include a claim for such
compensation.
Section 22: Power to grant relief for possession, partition, refund of
earnest money, etc.
Under Section 22(1) any person suing for the specific performance of a
contract for the transfer of immovable property may, in an appropriate case,
ask for:
(a) possession, or partition and separate possession, of the property as an
additional relief or
26
(b) refund of any earnest money or deposit paid or made by him as an
22(1) shall be granted by the court only if they are specifically
claimed. If the plaintiff has not claimed any such relief in the plaint,
then at any stage of the proceeding court shall allow him to amend the
plaint for including a claim for such relief.
Whether the enforcement of the amendment is prospective or
retrospective?
Now the crucial question for consideration is whether the benefit of the
said amendments can be extended and applied to the contracts entered
between the parties, which were entered prior to the amendment came in to
force? An important element in the examination of whether the Amendment Act
is prospective or retrospective in its application is to understand the objectives
behind the amendments. The amendments seek to bring about a substantive
change in the law by stating, for the first time, that the remedy of specific
performance when sought for breach of contract, would no longer be
exceptional or discretionary and would be available to a party as a matter of
right. The amendments do away with the discretion of the courts to grant
specific performance of contracts.
Section 6 of the General Clauses Act :
As the Amendment Act has led to the repeal and substitution of the
corresponding provisions of the Act, the general law in relation to repeal of
statutory provisions would be applicable, which is to be found in Section 6 of
the General Clauses Act. Section 6 inter alia states that a repeal shall not affect
any right, privilege, obligation or liability acquired, accrued or incurred under
any enactment so repealed. It also saves the previous operation of any
25 (2016) 9 SCC 720]
27
Under the Act (unamended), there was an obligation cast on the plaintiff
seeking specific performance to prove that compensation as a remedy is either
inadequate or unascertainable. Specific performance as a remedy was not
available to a party as a matter of right, but its grant was dependent on the
discretion of the court. This obligation of the plaintiff can be viewed as a
corresponding right or privilege enjoyed by a defendant. By virtue of Section 6,
the aforementioned right and obligation that accrued when the Act (un
amended) was in force, would stand preserved even after the introduction of
the Amendment Act. This is particularly so because the plain language of the
Amendment Act (which is the repealing statute in the present case) does not in
any way indicate an intendent to take away accrued and vested rights.
When can the right or obligation be said to have accrued or vested upon a
party? This right accrues or vests only when a breach of the contract occurs or,
in other words, when the dispute arises.[Baroda Cement and Chemical Ltd.
v. Commissioner of Income Tax,27] In the absence of a breach or a dispute, no
right under the Act (unamended) can be said to have accrued. It does not
matter that the contract was entered into prior to the Amendment Act coming
into force – i.e. at a time when the Act (unamended) was in force. Therefore,
the applicability of the Amendment Act would extend to all breaches and
disputes that have arisen subsequent to the Amendment Act coming into force,
regardless of whether those contracts were entered into prior to the
Amendment Act coming into force.
***
26 AIR 1969 SC 239
27 1986 158 ITR 636 Guj.