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Specific Relief Act

The document discusses specific relief under Indian law, focusing on specific performance of contracts and injunctions. It provides details on when specific performance is available as a remedy for breach of contract, such as when damages are difficult to calculate or compensate, or when the subject matter is unique property. It also lists types of contracts that cannot be specifically enforced, such as those requiring continuous supervision or personal services. Finally, it outlines different types of injunctions available under the law, including temporary, permanent, and mandatory injunctions.

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Rohan Chadha
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0% found this document useful (0 votes)
161 views7 pages

Specific Relief Act

The document discusses specific relief under Indian law, focusing on specific performance of contracts and injunctions. It provides details on when specific performance is available as a remedy for breach of contract, such as when damages are difficult to calculate or compensate, or when the subject matter is unique property. It also lists types of contracts that cannot be specifically enforced, such as those requiring continuous supervision or personal services. Finally, it outlines different types of injunctions available under the law, including temporary, permanent, and mandatory injunctions.

Uploaded by

Rohan Chadha
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Introduction

The Law of Specific Relief in India was originally codified by Specific Relief Act, 1877. The
provision of this enactment was considered by the Law Commission in its Ninth Report which
was later replaced by the present act of 1963. The Specific Relief Act, 1963 deals with
the remedies granted at the discretion of the court for the enforcement of individual civil
rights. In case of breach of contract, the general remedy available to the aggrieved party is
compensation or damages of loss suffered. For this, a civil suit is filed against the guilty party
who had made the default in performance of its duty or obligation as per the terms of contract
under the statutory provision of Section 73-75 of Indian Contract Act 1872. However,
sometimes pecuniary compensation does not satisfy the plaintiff so he may ask for specific
relief. For example if somebody unlawfully dispossess a person without his consent having
peaceful possession over the property then specific relief may enable him to have the
possession of same property instead of claiming pecuniary compensation.

THE ACT PROVIDES THE FOLLOWING KINDS


OF SPECIFIC RELIEF
• Recovery of possession of property
• Specific performance of contracts
• Rectification of instruments
• Rescission of contracts
• Cancellation of Instruments
• Declaratory decrees
• Injunction

Specific Performance of Contracts


Specific performance means enforcement of exact terms of the contract. Under it the plaintiff
claims for the specific thing of which he is entitled as per the terms of contract. For example,
if A agrees to sell certain shares to B of a specific company which are limited in number and
after the payment made by B, if A refuses to sell the shares then B is entitled to recovery of
those shares.
According to Section 10 of Specific Relief Act 1963 in the following conditions
specific performance of the contract is enforceable:

• When there exist no standard for ascertaining actual damage: It is the


situation in which the plaintiff is unable to determine the amount of loss suffered
by him. Where the damage caused by the breach of contract is ascertainable then
the remedy of specific performance is not available to the plaintiff. For example, a
person enters into a contract for the purchase of a painting of dead painter which
is only one in the market and its value is unascertainable then he is entitled to the
same.
• When compensation of money is not adequate relief: In following cases
compensation of money would not provide adequate relief:

1. Where the subject matter of the contract is an immovable property.


2. Where the subject matter of the contract is movable property and,
3. Such property or goods are not an ordinary article of commerce i.e. which could be
sold or purchased in the market.
4. The article is of special value or interest to the plaintiff.
5. The article is of such nature that is not easily available in the market.
6. The property or goods held by the defendant as an agent or trustee of the plaintiff.

In Case of Ram Karan v. Govind Lal [1], an agreement for sale of agricultural land was
made & buyer had paid full sale consideration to the seller, but the seller refuses to execute
sale deed as per the agreement. The buyer brought an action for the specific performance of
contract and it was held by the court that the compensation of money would not afford
adequate relief and seller was directed to execute sale deed in favour of buyer.

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

Contracts which cannot be specifically enforced


According to Section 14 of Specific Relief Act 1963, there are certain contracts which cannot
be specifically enforced and these are:
• Where compensation in money is an adequate relief: Here the court will not
order specific performance of contract as it is expected that the plaintiff will bank
upon the normal remedy for breach of contract i.e. remedy of compensation. For
example contract of mortgage of immovable property (Rambai v. Khimji)[3],
contract of sale of goods (Bharat v. Nisarali) [4], contract of repair of premises
etc.
• Where a contract runs into minutes or numerous detail: These contracts
includes contract which depends upon the personal qualification or the violation of
the parties or is of such nature that the court cannot enforce specific performance
of its material terms. In Robinson Davison [5], it was held by the court that the
contract to perform in concert depends upon the personal kill of defendant’s wife,
and the contract cannot be specifically enforced due to her illness. The other
example is construction contract where the detailed terms of contract are not
explained.
• Contracts of determinable nature: Determinable contract means a contract
which can be determined or revoked or put to an end by a party to the contract.
For example in case of partnership at will any partner can retire by giving notice in
writing to other partners and can dissolve the firm.
• Contracts which involve the performance of continuous duty which court
cannot supervise: Earlier under Specific Relief act, 1877 the continuous duty
which court cannot supervise is considered over a period of 3 years which was
omitted under Specific Relief Act, 1963 and no time limit restricted for the
performance of a continuous duty. These include contract of appointment of
employees for continuous service or contract to execute sale deed every year.
In Central Bank v. Vyankatesh [6], the defendant was required to execute deed
every year for the period of 25 years and contract is held to be specifically
unenforceable.
• Contract of arbitration: According to Section 14(2), a contract to refer present or
future differences to arbitration shall not be specifically enforceable.

However, Section 14(3) contains certain exception and the following kinds
of contract are specifically enforceable

1. A contract to execute a mortgage or furnish other security for repayment of any


loan which the borrower is not willing to repay at once, the court would grant
specific performance to execute mortgage or to give any other security.
2. A contract to take up and pay for any debentures of a company.
3. A contract to execute a formal deed of partnership at will when the business has
already commenced.
4. A contract for the construction of any building or the execution of any other work
on land if;
5. Detailed or the terms of the contract has been sufficiently explained & the court
can determine the exact nature of building or work.
6. The plaintiff has a substantial interest in performance of the contract and
compensation in money is not an adequate relief.
7. The defendant has in accordance with the contract, obtained possession of whole
or part of the land on which the building is to be constructed or other work is to
be executed.

Types of Injunction
Specific Relief Act, 1963 is an act to provide specific Relief in deserving cases. It extend whole
of India except in the state of Jammu & Kashmir. The act came into force on 1st March, 1964.
In Civil Law, legal remedies are for enforcing primary rights or for enforcing secondary rights.
When there is a breach of contract, if the court orders specific performance in favor of innocent
party, this is in nature of enforcement of a primary rights. If court orders for payment of
compensation against damage this is enforcement of secondary rights of parties. The Specific
Relief Act, 1963 is to protect and enforce primary rights of parties.
Following types of Injunctions are granted by the Court.
1. Temporary and Permanent Injunctions ( Sections 36 & 37)
2. Perpetual Injunctions ( Section 38)
3. Mandatory Injunctions ( section 39)
4. Damages in lieu of or in addition to Injection( Section 40)
5. Injunction to perform a negative covenant( section 42)
We shall now discuss all injunctions respectively;
Temporary and Permanent Injunction;
An injunction is an order of competent court which-
1. Which forbids commission of a threatened wrong, or
2. Forbids the commission of a wrong already began, or
3. Commands the restoration of status quo
Clauses 1 and 2 deal with preventive relief, whereas clause 3 refer to mandatory injunction, which
seeks to rectify the defendants’ wrongful conduct.
The Preventive Injunction wills b granted on sole discretion of the court, which will be based and
guided by sound and reasonable judicial principals.
Temporary Injunctions or Interim Injunctions are those which remain in force until specified
time or till date of next hearing of the case, or until further orders of the court. Such injunctions
can be granted at any stage of the suit and are governed by Order 39 of the Code of Civil Procedure,
1908 and not by Specific Relief Act, 1963.
Permanent Injunctions on the other hand, are contained in a decree passed by the court after fully
hearing the case. Such an injunction perpetually prohibits the defendants from asserting a right or
committing an act which would contrary to the rights of plaintiff. It is based on end suit. It remains
in force for all time to come.
Perpetual Injunctions may be granted, at the discretion of the court, to prevent the breach of an
obligation existing in the plaintiff’s favor, whether expressly or by implication.
Whenever the defendant invades or even threatens to invade the plaintiff’s right to property or the
enjoyment thereof, the court may grant a Perpetual Injunction to the plaintiff in the following four
cases;
1. Where the defendant is a trustee of the property for the plaintiff.
2. Where there is no standard for ascertaining the actual damage caused, or likely to be caused, to
the plaintiff, by invasion of his rights.
3. Where the invasion of the plaintiff’s right is such that compensation in money would not afford
adequate relief.
4. Where injunction is necessary to prevent multiplicity of judicial proceedings.
If the payment of damages will not adequately compensate the plaintiff, the court will grant an
injunction, unless there is special reason against it. The court may refuse injunction and award
damage in the following cases, if the injury is (i) small and (ii) capable of being estimated in money
and being adequately compensated by a sum of money and grant of injunction would be
oppressive. An injunction may also be refused on the ground of the plaintiff’s acquiescence and
delay. Similarly, injunctions should not be granted where they inflict more injury on the person
sought to be injected than advantage on the applicant as decided in the case of Tituram V. Cohen.
Perpetual Injunction when refused (section 41) in following cases perpetual injunction cannot
be granted;
1. To restrain any person from prosecuting a judicial proceeding pending at the institution of the
suit in which the injunction is sought, unless such restraint is necessary to prevent multiplicity of
judicial cases.
2. To restraint any person from insulting or prosecuting any proceeding in a court not subordinate
to that from which injunction is sought.
3. To restraint any person from applying any legislative body.
4. To restraint any person from instituting or persecuting any proceeding in a criminal matter.
5. To prevent breach of a contract, the performance of which would not specifically enforced.
6. To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a
nuisance.
7. To prevent a continuing breach in which the plaintiff acquiesced.
8. When equally efficacious relief can certainly be obtained by any other usual mode of
proceeding, except in case of breach of trust.
9. When conduct of plaintiff or his agent is such to disentitle him to the assistance of the court.
10. When the plaintiff has not personal interest in the matter.
The provisions of Section 41 is not exhaustive a refusal of injunction will depend on the discretion
of the court.
Mandatory Injunctions (section 39) at times it so happens that, in order to prevent the breach of
an obligation, it is necessary to compel the performance of certain acts which the court is capable
of enforcing. In such case the court may in its discretion , grant an injunction (i) to prevent such
brech , and also (ii) to compel the performance of the requisite acts.
This relief is applicable to the breach of any obligation, whether arising out of a contract or tort. It
may be perpetual or temporary, though in rare cases that of temporary injunction of this nature will
be issued.
An injunction is, in its nature, prohibitory. The defendant is first called up to restore the place to
the position in which it was before the act was done, and then he is restrained , when he has so
restored it, from doing anything in respect of it which would be breach of obligation on his part.
The object in every case is to compel the defendant to restore things to their former condition. This
type of injunction will be granted to prevent more injury and damages to the plaintiff.
Lane V New gate, a lased his land to B for erecting a mills and bound himself to supply water
thereto from canals and reservoirs on his own land. An impeded the enjoyment of water by B, by
keeping works out of repair by the use of locks, and by removing the stop-gate. B asked for an
injunction which was granted. In this case an affirmative covenants were enforced.
Damages in lieu of, or in addition to, injunction ( section 40) When a plaintiff sues for Perpetual
Injunction or a Mandatory Injunction , he may also claim damages, either in addition to , or in
substitution for , theinjuction, and the court, if it thinks fit , award such damages.
An injunction or damage are not alternate remedies but can be granted at the discretion of the court.
The damages cannot be granted unless the plaintiff has claimed damages in the plaint or in
proceedings he will be allowed to amend the plaint by incorporating clause for damages.
Injunction to perform a negative covenant (section 42) some time in a given contract, there
may be affirmative agreement to do certain act, coupled with a Negative Covenant, express or
implied, not to do a certain other act. Now the fact that the court is unable to compel specific
performance of the affirmative part does not mean that it cannot grant an injunction in respect of
the negative part. It is necessary in this case that the plaintiff has performed its part mentioned in
the contract.
Lumley V Wagner , A a singer , agreed that she would sigh for 12 months at B’s theatre and that
she would not sing elsewhere in the public during that period. Here B cannot obtained specific
performance of the first part of the contract (i.e. to sing at his theatre), but he is entitled to an
injunction, restraining A from singing at other public places during that period. In this case though
there is one contract but contain two parts one is positive and other is negative. The two parts are
independent contracts. In this case court cannot debar itself to give injunction in case of negative
covenant.
The Supreme Court has also observed that the jurisdiction to grant an injunction under the Act is
discretionary and must be exercised according to sound principals of law, and ex debito justito.
The plaintiff cannot claim this relief as a matter of right. Before refusing or granting the injunction,
the court must weigh the pros and cons in each case, consider the facts and circumstances in their
proper perspectives, and then exercise its discretion in the best interest of justice.

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