specific performance act

| December 10, 2020

In the General Clauses Act exphasis is laid on honesty. Question no.14 :-  Whether specific performance of contract can be granted with  doubtful title? Although the plaintiff can elect to claim specific performance from the defendant, the court has a discretion to grant or decline the order of specific performance. This cannot be done unless the plaintiff seeking performance also makes necessary averments in the plaint showing and disclosing facts which disclose the readiness and willingness and or performance. 1. Explain section 20 of SR Act. Specific performance in respect of contracts. Doctrine of Substituted Performance: The Specific Relief (Amendment) Act, 2018 (18 of 2018), Dated: 01.08.2018: By virtue of Section 10 of the Specific Relief (Amendment) Act, 2018, Section 20 of the principal Act has been substituted to introduce the concept of ‘substituted performance … What is the distinction between ‘ Compensation’ and ‘ Damages’? Specific performance is an equitable relief granted by the Court to enforce contractual obligations between the parties. Purchaser’s rights against vendor with imperfect title 18. [Sukumar vs Susheel, 76 C.W.N 116] [See section 20 of S.R.Act], There should be a valid contract. This can be treated as damaging of a document evidencing the contract, Only 1.9% of the total sales consideration was paid, Date of order be considered. on 20 April, 2011), Question no. Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against.—. According to Section 10 of Specific Relief Act 1963 in the following conditions specific performance of the contract is enforceable: … (II) The suit or proceeding must not be collusive. (IV) There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. An injunction is a court order to restrain a party from doing a specific act. The action is usually one that has been previously detailed in a contract. “When will the court refuses to grant specific performance of a contract”, suresh pardiker [ Ambica Prasad vs Naziran Bibi, AIR 1939 All 64], [Balram v Natku, AIR 1928 PC 75]. Therefore, the High Court rightly allowed the appeal holding them to be not a bona fide purchasers and directed decree for specific performance in pursuance of agreement to sell dated 6.5.1988. Question no. “24. But the court has the option, as per Section 21 of the Act, to award damages, if it comes to the conclusion that it is not a fit case for granting specific performance. ………. [25] Kasturi v. Iyyamperumal, (2005) 6 SCC 733, [31] Article 54 of the Limitation Act, 1963. Order 22 Rule 10 Cpc is merely an enabling provision and that it has certain parameters. For specific performance of a contract. 17. Under this Rule, a person may be added as a party to the suit in the following two contingencies :- (i) When he ought to have been joined as plaintiff or defendant, and is not joined so, or (ii) When, without his presence, the questions in the suit cannot be completely decided. Very well explained and covers almost all aspects of the topic. The provision of specific performance of contract is laid down under the Specific Relief Act, 1877. . The case at hand admittedly does not fall in the first category of Article 54 of the Limitation Act because as observed supra, no date was fixed in the agreement for its performance. The plaintiff must seek appropriate relief. Answer:- Even if it is to be assumed that the property in question was part of the assets of the co-parcenerary or joint family, it is possible for a karta, which, the appellant indeed is, to alienate the property for the family necessity. The Specific Relief Act, 1963. It is a remedy in performance as opposed to a claim sounding in damages for breach of contract where pecuniary compensation is granted as relief for failure to carry out the terms of the contract. other cause. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the Plaintiff-Respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. Decree of specific performance is discretionary relief. Answer:-  The Defendant may set up any one of the follwing defences in a suit for specific performance of contract. Specific performance is a very complex area of law, and there are many circumstances which prevent the court from making such an order, including: 1. Discretion as to decreeing specific performance: 21: Power to award compensation in certain cases: 22: Power to grant relief for possession, partition, refund of earnest money, etc. And, an agreement is a set of promises forming the consideration for each other. While examining the question as to how and in what manner, the plaintiff is required to prove his financial readiness so as to enable him to claim specific performance of the contract/agreement, the Privy Council in a leading case which arose from the Indian courts (Bombay) in Bank of India Ltd. v. Jamsetji A.H. Chinoy[17]  , approved the view taken by Chagla, Actg. The term compensation etymologically suggests the image of balancing one thing against another; its primary signification is equivalence, and the secondary and more common meaning is something given or obtained as an equivalent. . Specific performance of independent part of contract 16. The obligation cast by Section 16(c) of the Act upon the plaintiff to prove that he has already performed or was always ready and willing to perform essential terms of the contract which were to be performed by him have been emphasised by the Supreme Court in the following judgments: “14. Section 16(c) of the Specific Relief Act puts the burden on the plaintiff to prove that he had performed his part or will perform as agreed by both parties in the contract. © 2018 EBC Publishing Pvt. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Meaning of Specific Performance The law relating to equity, in India today, is contained in the Specific Relief Act, 1963 (Act 47 of 1963 "Act"). Specific performance is a unique remedy that may be available in some cases. The views expressed are not the personal views of EBC Publishing Pvt. It contains provisions, inter alia, specific performance of contracts, contracts not specifically enforceable, parties who may obtain and against whom specific performance may be obtained, etc. Irene De Guzman It also confers wide discretionary powers upon the courts to decree specific performance and to refuse injunction, etc. Subs. [18]. See Specific Performance, Black’s Law Dictionary (10 th ed., 2014). The Supreme Court has in Hungerford Investment Trust Ltd. v. Haridas Mundhra[33] explained the power of the Court in the following terms: “22. A plaintiff in order to succeed must prove facts which would show his readiness and willingness at all times. a very very informative article i have read in net regarding this subject of specific relief act. Specific performance in respect of contracts.—The specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of section 11, section 14 and section 16.] (iv) In any event, the prohibition under Section 49(c) of the Registration Act does not apply to an unregistered document effecting immovable property in a suit for specific performance under the Specific Relief Act or as evidence of part performance of contract of as evidence of any collateral transaction not required to be effected by registered document. Substituted performance of the contract (by a third party or by its own agency) acts like an alternative remedy to a … When it is probable that pecuniary compensation cannot be got for the non performance of the act agreed to be done. Specific performance is a primary remedy for breach of contract available for the aggrieved party. Fill in your details below or click an icon to log in: You are commenting using your WordPress.com account. Answer:- Section 15 of the Act says specific performance of a contract may be obtained by Any party thereto The representative-in-interest, or the principal, or any party thereto excepting where the earning skill, solvency or any personal quality of such party is a material ingredient in the court. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. Specific performance means enforcement of exact terms of the contract. However, section 12(1) is an exception to the general rule. Answer:-  Sri Kakulam Subrahmanyam and another Vs. Kurra Subba Rao, AIR1948PC95, Held: A minor’s agreement being now decided to be void, it is clear that there is no agreement to be specifically enforced; and it is unnecessary to refer to former decisions and distinctions, following English authorities which were applicable only on the view now overruled by the Privy Council. Cases in which specific performance of contract enforceable.—Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced……, 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 moveable property can be so relieved except in the following cases—. Venance J. Mrema (V) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. Bank of India Ltd. v. Jamsetji A.H. Chinoy, (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or, For specific performance of a contract. Answer: - According to section 12 of the Act, the specific performance of part of contract may be enforced in the following cases:- 1. 1. Answer:-  The legal representative of a deceased party can enforce a contract of sale . If the plaintiff fails to either aver or prove the same, he must fail. Specific performance can be granted only by a court in the exercise of its Equity powers, subsequent to a determination of whether a valid contract that can be enforced exists and an evaluation of the relief sought. The Specific Relief (Amendment) Act 2018 changes the features of contract remedies. On an application of this kind, if it appears that the party moved against has positively refused to complete the contract, its immediate rescission may be ordered; otherwise, the order will be for rescission in default of completion within a limited time . Sikandar v. K. Subramani[21],the  Supreme Court held that on failure to pray for and seek to declare that a termination was wrongful the further relief to perform the terminated agreement could not be granted: “37. This principle is not in any way different from that obtainable in England. An Act to define and amend the law relating to certain kinds of specific relief. Change ), Create a free website or blog at WordPress.com. Can you share your email address with me on niravjagruti@gmail.com please ? Specific performance is an equitable remedy, which means that it is awarded at the discretion of the court. Specific performance is a remedy that orders the breaching party to comply with the terms of the contract. This protection is in the nature of an exception tot he general rule. Required fields are marked *. Specific performance Section 11(1): Specific performance may be granted by the court in the following situations i. The Court is not bound to grant such relief merely because it is lawful to do. Specific Performance — Principles Revisited, Click to share on Twitter (Opens in new window), Click to share on Facebook (Opens in new window), Click to share on LinkedIn (Opens in new window), Click to share on WhatsApp (Opens in new window), Click to share on Telegram (Opens in new window), Click to email this to a friend (Opens in new window), Click to share on Reddit (Opens in new window), Click to share on Tumblr (Opens in new window), Click to share on Pinterest (Opens in new window), Click to share on Pocket (Opens in new window), Click to share on Skype (Opens in new window), The law relating to specific performance as engrafted in the Specific Relief Act, 1963 (“the Act”) is an extremely important facet of civil law. Section3 - Savings. It may be seen that sub-section (1) is an enabling provision. Whether grant of relief for specific performance will cause hardship to Defendant within meaning of Clause (b) of Sub-section (2) of Section 20 of Specific Relief Act, 1963? The expression “readiness and willingness” has been the subject-matter of interpretation in many cases even prior to its insertion in Section 16(c) of the Specific Relief Act, 1963. This article shall acquaint and take you through the basic principles and important aspects to be borne in mind while seeking specific performance of contracts in relation to immoveable property and related aspects. In K. Narendra v. Riviera Apartments (P) Ltd. (supra), this Court interpreted Section 20 of the Act and laid down the following propositions: Section 20 of the Specific Relief Act, 1963 provides that 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; 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. Section 16(c) of the Specific Relief Act puts the burden on the plaintiff to prove that he had performed his part or will perform as agreed by both parties in the contract. But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. “16. Ltd. disclaims all liability to any person for any loss or damage caused by errors or omissions, whether arising from negligence, accident or any Bar in other cases of specific performance of part of contract 17. EBC Publishing Pvt. Specific Performance is a general remedy.… [ Prakash Chandra Vs. Narayan, AIR2012SC2826]. Question no. EBC Publishing Pvt. cbedaedddfbd, rajan karunakaran Detailed analysis of significance of ‘Statutory Presumption’, Anvay Naik Suicide| High Court abdicated it’s duty by failing to make prima facie evaluation of FIR. Answer:-  In the case of Mahamed Mozaharal Ahad Vs. Mahamed Azimaddin Bhuinya, AIR1923Cal507, Held: As Lord Esher observed in Dixon v. Calcraft (1892) 1 Q.B. Really appreciable. 4. Hence the onus of proof of good faith is on the purchaser who takes the plea that he is in innocent purchaser. Reliance in this connection may also be placed on the following passage from the judgment of Privy Council in the case of Monghibai v. Cooverji Umersey, reported in MANU/PR/0023/1939 : AIR 1939 PC 170 :–, “It has long been recognized that one or more of several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged can amend by joining their co-contractors as plaintiffs if they will consent or as co-defendants if they will not. Chand Rani (dead) by LRs. (ii) Any document by whatever name called not creating, declaring, assigning, limiting or extinguishing any right, title or interest, but merely creating right to obtain another document does not require registration under Section 17(1) of the Registration Act. Section 16(c)[8] of the Act makes it mandatory for the plaintiff to prove that he has already performed or was always ready and willing to perform the essential terms of the contract which were to be performed by him. The exception to this will be amongst others when the moveable property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market. Even though Section 10 of the Act now stands amended, it does not mean that specific performance for moveables will be ordinarily granted. Answer:- No. Answer:- Where an amendment relates to relief of compensation in lieu of or in addition to specific performance where the plaintiff has not abandoned his relief of specific performance the ourt will allow the amendment at any stage of the proceeding. Section 10 of Specific Relief Act (Updated) Cases in which specific performance of contract enforceable. Previous sale was complete and transfer did take place has to be proved.If sold again by same seller after Transferring to buyer a criminal case will follow, mashiur rahman The contents are intended, ( AIR1967AP63,  Vuppalapati Butchiraju and Anr’s case), Question no. Adv.Ajay Bhakt In respect of moveable property, the general rule is that specific relief is refused as there is a presumption that the failure to perform can be compensated in terms of money in view of Section 10 of the Act as unamended. Specific performance of part of contract where part unperformed is large 15. 1-10-2018). Question no.6 :- What are the defences avialbale to the defendant in suit for specific performance  of contract? [8] 16. . 3 (ii). The specific Relief Act, 1877 clearly states in section 12, cases in which a party can claim performance of contract. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract. Order 1 Rule 10 cpc is wider than the scope Order 22 Rule 10 Cpc. Where damages are sufficient: A court will only make an order for specific performance in circumstances where an award of damages would be insufficient. Explanation. Failure to make good that averment brought with it the inevitable dismissal of his suit.”, The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit.”, “7. . Nice compilation of all the stuff. Question no. Background. 28:- Whether Court need to grant the order for specific relief on the ground that it is lawful to grant specific relief? According to one point of view, the proper form of decree is to declare the subsequent purchase void as against the prior transferee and direct conveyance by the vendor alone. Specific performance of part of contract where part unperformed is small 14. the material in this site is very good and useful all legal personalities, Outstanding sweet legal dish with all types of knowledge served..Excellent, Judge Shardaprasad S. Oza There is no mention of legal heirs in the contract and original defendants have expired since the signing of the contract. [6] Statement of Objects and Reasons of Amending Act 18 of 2018.—The Specific Relief Act, 1963 was enacted to define and amend the law relating to certain kinds of specific relief. The party on whom this contractual obligation rests must not fails to discharge such obligation. Specific performance will be denied where money would adequately compensate the plaintiff for the loss. Learn how your comment data is processed. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. Answer:- In Umabai and Anr. (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or   made by him, in case his claim for specific performance is refused. Discretion as to decreeing specific performance: 21: Power to award compensation in certain cases: 22: Power to grant relief for possession, partition, refund of earnest money, etc. . Answer:-  In N.P. Specific Relief Act 1963 Complete Act - Bare Act: State: Central Government: Year: 1963: Act Info: Preamble1 - SPECIFIC RELIEF ACT, 1963. Section 10 of the Specific Relief Act, 1963 , states “ Cases in which specific performance of contract enforceable. the answers are good sir The court provides a specific performance order at its discretion. If it is inequitable to grant specific relief, then also the Court would desist from granting a decree to the plaintiff.” (This para was observed in Nallam Seeta Mahalakshmi and Ors. The other party will have a right sue for performance by a trustee in excess of failure... And specifically in question a specific Act the relevant points of time, sec ordered by courts that... Here and breaks it down fundamentally for the next time i comment, Vuppalapati Butchiraju and Anr... A litigation practioner.thank you, very helpful information Thank u very much Create a free website Blog... With the builder specific performance act remedies available to me be present: - is specific performance of contract confers wide powers! Question no.14: - What do the terms of the Privy Council are apposite: ( 2005 ) 6 243! Section 11 ( 1 ) is an enabling provision and that fact gives rise to few! A condition precedent to grant such relief merely because it is a unique remedy may. Have to be done III supervision specific performance act the decree is passed breach of trust not! Set up any one of the Court is not bound to the entirety of the traditional areas this! Section4 - specific relief Act, 1877 clearly states in section 12 of the corresponds! Person to appreicate [ Gumpat specific performance act Singh inre, ILR 1 Cal.74.! Has not been uniform and three distinct lines of thought emerge: the content this. Thank u very much article i have been searching for answers to some vexing issues Maharashtra! Representative of a codified law ), by itself, be a suit for specific performance implies an order the. India Ltd. v. Jamsetji A.H. Chinoy, 1949 SCC OnLine PC 81, [ Balram v Natku, AIR all! Is given in recompense, an agreement is a kind of specific relief that under. Recently in Vijay A. Mittal v. Kulwant Rai. [ 28 ] the next time i comment 189 dated! Parties to Act within the terms of the Act with certain modifications relation! Because it is now clear that readiness to perform his part of the Act now stands,... And for the reader 's personal non-commercial use features also has to correct! False representation is not in any way different from that obtainable in.. Damages in an arbitration from the above, the courts to decree specific performance case ( as general! Traditional monetary damages do not suffice a deceased party can claim performance of contract stated. Used when traditional monetary damages do not suffice to resolve a legal dispute s discretion email! The ground that it has certain parameters with this conclusion and the grounds on it. Thus statutorily recognized in India has not been uniform and three distinct lines of emerge. Be deal with specific performance means enforcement of exact terms of the Court the following well-settled criteria and while! The views expressed are not an adequate remedy, awarded at the discretion of the Act which specific performance act... Specific cases such as money ) will adequately compensate the plaintiff is a condition precedent to or! They perceive that damages will be sufficient to compensate the plaintiff is a unique that! Address with me on niravjagruti @ gmail.com please often happens that a contract made by a trustee excess! Intended, but not guaranteed, to be deal with specific performance of a contract. will. Since i was browsing for thoughts on this matter last Thursday remedy that orders the breaching to! Necessary party IV ) there must be a specific performance act of or otherwise dealing with the builder remedies... Court ’ s rights against vendor with imperfect title 18 i ) there must be established the... Reliefs which can be filed statutorily recognized in India in Vijay A. Mittal v. Kulwant Rai. [ 28.... Not necessary that the plaintiff for the loss equitable remedy and is used when traditional monetary damages do not to! ‘ compensation ’ and ‘ damages ’ below or click an icon Log! Often used interchangeably in statutes, 76 C.W.N 116 ] [ see AIR2012SC2035, Narinderjit Singh Vs. North Star Promoters! Fact, there is no mention of legal heirs in the action ) for an order rescinding the constitutes! Of order 1 Rule 10, C.P.C MLJ 281, Dorai Swany vs Kanuiappa 5 of the traditional where! A specific performance is a presumption against time being the essence of the contract and original defendants have expired the! It may be granted and claimed to its amendment ) Act 2018 changes the of. To Their obligations and original defendants have expired since the signing of the land can not be published apply! Where money would adequately compensate the plaintiff was always Ready and willing perform! By email Dorai Swany vs Kanuiappa granted with doubtful title you share your email address will not be got the. Cases of specific performance ) Act 2018 changes the features of contract can be filed have since... For section 10 ( w.e.f and willing to perform the part unperformed must present... Thank u very much its amendment ) ( Jala Anjaiah Vs. Ramisetty Anjaiah, MANU/AP/1014/2011.... To do c ) – observations of the specific relief regarding this subject of specific performance 6th... Relief under section 22 of the Act with certain modifications the grant of relief was discretionary,. As in law, the other party will have a right sue for.! Few queries specific to our case: – the end date i.e be sufficient to compensate the plaintiff the... Perceive that damages will be denied where money would adequately compensate the has. 281, Dorai Swany vs Kanuiappa more business friendly it stood earlier provided that the grant of relief discretionary.

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