SPECIFIC RELIEF ACT
The terms " Specific Performance' is not defined in the Specific Relief Act, 1963. According to the Oxford Dictionary " Spefic Performance" means, the performance of a contractual duty, as ordered in cases where damages would not be adequate remedy. Law of Specific Relief has been enacted for certain kinds of specific relief. Law of Specific Relief is a kind of procedural law and it supplements to the Code of Civil Procedure, 1908. Principles of specific relief are recognized by the English Courts and they are based on rules and practices of Common law courts.
Specific relief is a remedy which aims at the exact fulfillment of an obligation. The specific Relief Act, 1963 came into force on 13-12-1963 replacing old Specific Relief Act, 1877. The real object of this Act is to give party seeking specific relief of protection of some civil right or the prevention of some civil wrong. Civil injury means violation of obligation. Specific relief is a form of judicial redress. It is an equitable relief.
'Ubi jes ibi remedium' means where there is a right there is a remedy. The constitution of India recognizes the "Right to Property" in Article 300-A. Therefore, no person shall be deprived of his property save by authority of law. The enumeration of rights and duties guaranteed by the constitution is supplemented by legal devices which help the individual to enforce his rights.
In other words, 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 of the contract. This is called ' specific Performance'. Orders 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. Under the Specific Relief Act, 1963, courts grant specific performance when they perceive that awarding damages will be inadequate relief. Specific performance is deemed an extraordinary remedy, awarded at the court's discretion.Object and Scope
The object of the Act may best be stated in the words of Statement of Object and Reasons which runs as under:-
This Bill seeks to implement the recommendation of the Law Commission contained in its Ninth Report on the Specific Relief Act 1877, except in regard to Section 42 which is being retained as it now stands. An earlier Bill on the subject introduced in the Lok Sabha on the 23rd December,1960, lapsed on its dissolution. The notes on clauses extracted from the Report of the Law Commission, explain the changes made in the existing Act".
The object of the Specific Relief Act is confined to that class of remedies which a suit or seeks to obtain and a court of justice seeks to give him the very relief to which he is entitled. The Law of Specific Relief seeks to implement the idea of Bentham, who said: " The law ought to assure me everything which is mine, without forcing me to accept equivalents, although I have no particular objection to them".
The Specific Relief Act explains and enunciates the various reliefs which can be granted under its provisions, provides the law with respect to them. It provides for the exact fulfillment of the obligation of the specific performance of contract. It is directed to the obtaining of the very thing which a person is deprived of and ought to be entitled to ask for. It is a remedy by which party to a contract is compelled to do or omit the very acts which he has undertaken to do or omit. The remedies which has been administered by Civil Courts of Justice against any wrong or injury fall broadly into two classes:
(i) those by which the suit or obtains the very thing to which he is entitled, and
(ii) those by which he obtains not that very thing, but compensation for the loss of it. The former is the specific relief. Thus specific relief is a remedy which aims at the exact f fulfillment of an obligation. It is remedial when the court directs the specific performance of contract and protective when the court makes a declaration or grants an injunction.
As the main objectives of the Act have been vested in the very title of this statute i.e. Specific Relief, due to which we can have a basic understanding that the Specific Relief Act is a legal statute dealing with reliefs or recovery of the damages of the injured person. This Act was enacted in 1963 following the approach that when a person has withdrawn himself from the performance of a particular promise or a contract with respect to another person, the other person so aggrieved is entitled to a relief under Specific Relief Act, 1963. This Act is considered to be in one of the branches of the Indian Contracts Act, 1872.
Section 2 of the Specific Relief Act, 1963 deals with some important definitions which are as follows:
- Section 2(a) deals with obligations which are duties imposed on a person by the law or the legal body.
- Section 2(b) deals with the settlement that means delivery of the movable or immovable property to their successive interests when it is agreed to be disposed of.
- Section 2(c) deals with the word "trust" which has the same meaning as defined in section 3 of the Indian Trusts Act, 1882.
- Section 2(d) deals with the word "trustee" which means the person holding trust in the property.
- All other definitions which have not been explained herein are the same as referred to the definitions of the Indian Contracts Act, 1872.
Section 4 of this act explains that this Act grants special relief for the enforcement of individual rights and not for imposing penal laws. The enforcement under this Act only bases itself on the individual civil right and the substantive nature must be established for that fact. To be understood in a simpler way specific relief is related to providing relief for the infringed civil rights of the individual. Its main objective is to focus on the rights and if there is any penal nature of the case, it may have to be established for proving the same.
Recovering the possession
The recovery of possession of this Act is provided under two heads: recovery of the immovable property and recovery of the movable property. The law of Specific Relief Act,1963 works on a basic principle that "Possession is itself a prima facie evidence of the ownership".
Recovery of the possession of immovable property
Section 5 explains the remedies available to a person when he is disposed from his property. If a person has been removed through the line of possession or wants to recover what lawfully is his property, then that person can do so through the recovery procedure provided by the Code of Civil Procedure, 1908 and in which the person will prove that the title belongs to him.
Section 6 of this Act details that if a person has been dispossessed or divested from the property against the nature of law, then that person can file a suit for recovery of possession. This section is not only a mere legal rule but also has a wide practical approach. There are certain essential requirements for fulfilment of recovery under this section that are as follows:
- The person suing for dispossession must be in possession of that property.
- The person must be dispossessed from the property and such divest from the property must be unlawfully done or must be carried out against the nature of law.
- The dispossession must be without the consent of the person suing.
- Section 6 sub-clause (2) explains that no suit can be bought by a person after the expiry of 6 months from the date of dispossession.
- Section 6 sub-clause (2) also explains that no suit by a person can be brought against the government.
If the person has not filed any suit in the prescribed time period (section 6) then the only relief open to him is that of section 5 i.e to prove his title of the property in a better way. Section 6 has certain limitations which explains that if any order or decree has been directed by the court in regards to section 6 then, no appeal or review shall lie against such order or decree but such order is open to revision.
Recovery of the possession of movable property
Section 7 explains that when a person wants to recover the possession of the movable property, they can follow the procedure expressed by the Code of Civil Procedure,1908. section 7 has further two sub-clauses which further details that a trustee may file suit against the beneficial interest he was entitled to and the other sub-clause explains that the ownership of the property can also be expressed with the presence of a special right given to the person suing; which would be enough as an essential to file a suit.
Essentials of section 7 are as follows:
- There must be a presence of movable property which is capable of being delivered or disposed of.
- The person suing must have the possession of the property in question.
- There may be an existence of a special or temporary right on the property.
Section 8 of the Specific Relief Act,1963 explains that when a person is in the possession of the article to which is he is not the owner, shall be compelled to deliver such article to the person who will have its immediate possession in following cases:
- When the article is held by the defendant as the trustee of a person who has the immediate possession.
- When compensation in money is not an adequate relief.
- When it is difficult to ascertain actual damage caused to the person.
- When the possession of the article has been wrongfully transferred from the person so entitled.
Specific Performance of contracts
Section 10 — amended and substituted to empower the enforcement of specific performance of a contract , by Courts subject to S. 11(2), S. 14 and S.16 of the Act.
Section 10 includes in what condition-specific performance of the contract may be enforceable, specific performance usually depends upon the discretion of the court but there are certain conditions for performance which are mentioned as follows:
- When the damages or loss occurred due to the non-performance of the contract cannot be ascertained.
- When money as compensation is not an adequate relief due to the nonperformance of the contact.
Until the contrary is proved it is presumed by the court that (i) that the breach of contract of immovable property cannot be adequately fulfilled by money (ii) the breach of contract of movable property can be relieved except in the cases of a) where the property is not an ordinary article of commerce, b) where the property is kept by the defendant as a trustee for the property.
Specific performance will be a general rule rather than a limited right The Amendment Act minimizes the discretion of the courts in cases seeking specific performance of contracts and grants a right to an aggrieved party to seek specific performance of a contract3 in certain cases, subject to the provisions contained in Sections 11(2), 14 and 16 of the Act. The Amendment Act also grants an additional right, which appears to be in alternative and without prejudice to other rights under the Act and the Indian Contract Act, 1872, to have the option of substituted performance through a third party, and recover the expenses and other costs actually incurred, spent or suffered by such aggrieved party, from the party committing the breach of the contract.
Previously, under Section 10 of the Act, specific performance of a contract was a discretionary remedy which could be granted only when:
- the actual damage caused due to the non-performance of the action could not be ascertained; or
- when monetary compensation would not be adequate relief for the nonperformance of contract.
However, the Amendment Act now minimizes the discretion of a court to grant specific performance of a contract, unless the contract, specific performance of which is sought, falls within the categories of contracts specified in the amended Section 14 of the Act, or if the aggrieved party seeking such relief falls within the category of persons listed in the amended Section 16 of the Act. Further, the amended Act expressly permits the aggrieved party to seek compensation for the breach of a contract in addition to seeking specific performance of such contract (whereas prior to amendment, such claim for compensation was either in addition to or in substitution of seeking specific performance.)
Contracts that cannot be specifically enforced
Section 14 mentions certain contracts which cannot be specifically enforced which are as follows:
- When there is a non-performance for the act, and money is adequate compensation.
- A contract that is full of many details and its nature is personal to the parties, these can not be specifically enforced.
- The contract requires continuous work for which the court cannot supervise.
- The court whose nature is determinable.
Section 14 — substituted to specify contracts which cannot be specifically enforced like where :-
- party has obtained substituted performance by virtue of S.20;
- performance involves performance of a continuous duty which the court cannot supervise;
- contracts so dependent on personal qualifications of parties that, the court possibly cannot enforce specific performance on material terms;
- nature of the contract is indeterminable.
Contracts not specifically enforceable
Pursuant to the Amendment Act, specific performance cannot be enforced for the following types of contract:
- a contract where a party has obtained substituted performance of the contract in accordance with the provisions of Section 20 of the Act;
- a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise;
- a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and
a contract, which, by its nature, is determinable.
New Section 14A — incorporated to provide engagement of experts to assist on specific issues involved in a suit and also direct the production of documents, in cases where Court considers it necessary.
The Amendment Act also amends Section 20 of the Act to provide for substituted performance. In the event of a breach of a contract, the aggrieved party is entitled to arrange for the performance of the contract by a third party or by his own agency, and, to recover the costs and expenses actually incurred. This however does not prevent the aggrieved party from claiming compensation from the defaulting party. It appears logical though that, once such substituted performance is sought, the aggrieved party would not be entitled to seek specific performance of the contract.
Persons against whom the contracts can be specifically enforced
Section 15 deals with the person against whom the contracts can be specifically enforced:
- Any party to contract or any party to suit.
- Representative in interest or principal, which holds certain important ingredients-
- Any special skill, or any qualification.
- The principal in interest shall be not be entitled to specific performance.
- Where the contract is for settling a marriage or to compromise the situation between the family members.
- When a contract has been entered into by a tenant over a property for life.
Section 20 — introduces the 'substituted performance of contract', which enumerates that where a contract is broken due to non-performance of promise, such party suffering the breach shall have an option of substituted performance through a third party or by his own agency, and recover the expenses and other costs incurred (subject to the condition that it should be performed by a third party or his own agency).
New Section 20A — provides 'Special Provision' for contracts relating to infrastructure projects, where granting injunction would cause impediment to the project itself.
Enforcement of awards
Section 21 deals with the power to award compensation; in various cases, compensation can be done through the court to the aggrieved person. There are certain cases which are as follows:
- When there is a suit filed for specific performance of the contract due to its breach the aggrieved person may also demand compensation in addition.
- When according to the court the specific performance may not be granted but there has been a breach of contract, the court accordingly will order for compensation to be given to the aggrieved party.
- When the court thinks that in this case specific performance of the court shall be granted but it will not be an adequate relief so, compensation in money can be ordered.
- No compensation shall be awarded when the relief for money is not itself mentioned in the plaint.
Rectification of instruments
Section 26 deals with the ways in which instrument can be rectified: When through fraud or mutual mistake the parties do not show their real intention then:
- Either party or representative in interest may file a suit for rectification of the instrument,
- The plaintiff in his plaint may plead for rectification of instrument,
- The defendant in his defence may claim for rectification of instrument. The court can direct rectification of instruments in cases where the party through fraud does not show their real intention to prevent violation of rights to the third party.
Requirement for rectification
The party who wants to rectify the instrument firstly must give them in writing and then mention them in their pleading. No relief shall be granted when the rectification is not specifically mentioned.
Recession of Contracts
Section 27 deals with the recession of the contract, in law, recession means withdrawing of the contract or in simpler terms: cancellation of the contract. It brings the party in a situation as if the contract did not happen i.e status quo ante meaning in its original state.
Recession when cancelled
A contract can go through the recession by the pleading of any party except there are some cases in which recession may be cancelled. Recession can be cancelled in certain ways: a) where the contract has been terminated or "has been deemed" voidable by the plaintiff, b) when the contract is unlawful.
Cancelling the contracts through recession
A contract may be cancelled through the recession in cases:
- where the plaintiff has himself given consent to the contract,
- where the third party has gained interest in the contract and where their rights come into question,
- where only a portion of the contract is to be cancelled but it is in such a position that the faulty portion cannot get separated from the contract.
Cancellation of the contracts
Cancellation is one of the remedies which is available to parties against injuries in a contract; section 31 to 33 deals with cancellation of instruments through the court.
Section 31 explains that when an instrument is void or voidable against a person then he can get that instrument if it may cause damage to it.
Section 32 deals when a contract can be partially cancelled; for example in cases where there are certain rights and obligations connected with some parties through that contract, then the court accordingly may cancel the faulty portion and let the other in motion.
Section 33 has two heads in it i.e powers to aggrieved party after cancellation and orders to the defendant after cancellation.
Power of aggrieved party
When the contract has been successfully cancelled, the aggrieved party may receive all the restoration of benefit and compensation to ensure justice.
Orders to the defendant after cancellation
When the suit has been proven voidable against the defendant, he is required to restore every benefit to the plaintiff which the defendant may have received during the contract.
Section 34 and 35 deal with declaratory decrees which are declared through the courts to the parties to suit or contract.
Section 34 deals with that when any person has a certain right or obligation over the property and he has been denied that right by any party, then the aggrieved party may file a suit for the enforcement of the right over the property which has been denied to him. The Court will give a declaration after looking over the case that the aggrieved party has a right over the title of such property and so a declaratory decree will be passed. Such declaratory decree will not be passed by the court when the plaintiff demands something more than the title over that property.
Section 35 deals with the effect of the declaration which explains that this decree will be binding to only to those which are the parties to suit, the decree will be binding to only the parties to suit and the trustees at the time of suit if any.
Preventive relief is considered to be any relief which abstains a party from doing any act; a relief from the court which details that the party should not perform certain acts for which the relief shall be prescribed. Such reliefs can be imposed in the form of injunctions.
Injunctions are a specific order under which a party must abstain from performing any act. Injunctions under the Specific Relief Act,1963 may be divided into different types namely temporary, perpetual and mandatory. Injunction is mentioned from section 36 to 44.
No injunction against infrastructure projects
The Amendment Act prevents the courts from granting an injunction in suits where the contracts relate to infrastructure projects, if such an injunction would cause impediment or delay in the progress or completion of such a project. These projects are categorized under the following sectors (subject to amendments by the Central Government):
- water and sanitation;
- communication, such as telecommunication; and
- social and commercial infrastructure, such as affordable housing.
The intent is to reduce court intervention in infrastructure projects and also, to ensure that public interest attached to such projects is not affected by court proceedings which may impede or delay the progress of completion of such projects, especially the projects in which larger public interest is involved.
Perpetual injunctions are known as permanent injunctions. They can only be imposed after hearing the parties on the merits of the case in which the defendant has enjoyed an assertion of the right and by affecting the plaintiff on the contrary. The perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation and imposing rights in his favour. When the defendants invade the plaintiff's right to enjoyment, a perpetual injunction may be applied in certain cases where:
- The defendant is the trustee of the property.
- Actual damage cannot be ascertained.
- Money as compensation would not be adequate relief.
- Injunctions are necessary to prevent multiplicity of judgments.
Geeta Rani Paul v. Dibyendu Kundu
It was held by the Hon'ble Supreme Court that when the plaintiff files suit regarding the dispossession, it is enough if he proves that he is entitled over the title of that property. Once the title is proved other details like being divested from the property or other things are not required to be proved.
N.P. Thirugnanam v.Dr. R.J. Mohan Rao
It is held by the Court that when in a case it is observed that the plaintiff itself did not perform his portion in the contract or neither does he want to perform, so the decision regarding specific performance act will be issued under this favour.
Prem Singh vs. Birbal
The Court, in this case, held that when a contract is valid no doubt of it being cancelled arises and when it is void ab initio (meaning no existence in the law from the starting ) then no also no option of cancelling it arises as it is not present in the eyes of law. When a contract has no existence no action is enforced on it.
The Specific Relief Act, 1963 has a set of reliefs given to the parties to suit. They have different reliefs and enforcing rules which focus on providing enough compensation to all. This legal statute's main aim is that no person shall live with the damages and losses and those who have caused such a situation must be in a position to restore all unlawful benefits received by them. This act focuses on providing justice to all and not inequitable favouring a single party.
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