Introduction:

The law relating to Specific relief in Bangladesh was originally codified

under the Specific Relief Act,1877. The provisions of this Act were later
revised and remain in effect under the current legal framework. The
Specific Relief Act deals with remedies granted at the discretion of the
court for the enforcement of individual civil rights. In cases of breach of
contract, the general remedy available to the aggrieved party is
compensation or damages for the loss suffered. For this, a civil suit may
be filed against the defaulting party who failed to perform their duty or
obligation under the terms of the contract, as stipulated in Sections 73–
75 of the Contract Act,1872. However, monetary compensation may not
always suffice for the plaintiff. In such cases, they may seek specific relief
instead.

For instance, if a person is unlawfully dispossessed of property without

their consent while in peaceful possession, the court may grant specific
relief to restore possession of the same property rather than awarding
monetary compensation under the Section 9 of the Specific Relief Act,
1877.

à Meaning of Specific Performance:

Specific Performance is a specialized remedy used by courts when no
other remedy (Such as Money) will adequately compensate to other
party. Specific performance may be ordered instead of a judgment for
money if the contract can still be performed and money cannot
sufficiently reward the plaintiff. Example: When a defendant was to
deliver some unique item such as an art- work and did not, a judge may
order the defendant to actually deliver the art work. When there is a
contract there is an obligation of performance of such contract, in our
law it is coined as specific performance of contract. We can sue a party
if they refuse to perform their part of the contract but before suing or
even before contracting we need to know the law of specific
performance of contract. Specific Performance is an equitable remedy of
contract, a civil court can issue an order requiring a party to perform a
specific act.

à Definition of Specific performance:

A contract is an agreement upon consideration to do or not to do a
particular thing, if the person on whom this contractual obligation rests,
fails to discharge it, other party has a right either to insist on the literal
and actual performance of the contract or to obtain compensation for the
non-performance of it. The former is called "specific performance."

In the words of Fry:

"The specific performance" of a contract is its actual execution
according to its stipulation and terms, and is contrasted with damages or
compensation for the non-execution of the contract.

According to Halsbury Specific performance is “an equitable relief given

by the Courts in cases of breach of contract, in the form of a judgment
that the defendants do actually perform the contract according to its
terms and stipulation. The right of a party to a contract to burden that the
defendant be ordered in the judgment to perform the contract.

Pomeroy defines.-

Specific performance as consists in the contracting party, exact

fulfilments of obligation which he has assumed in his doing or omitting
the very act which he has undertaken to do or omit.

In the case of Ameer Mohd v. Barkat Ali, AIR 2002 Raj 406:
If the person on whom this obligation rests, fails to discharge it, these
results in morality to the other party a right at his election either to insist
on the actual performance of the contract or to obtain satisfaction for the
non-performance of it.

à Specific performance of contract:

Contract is the precondition for specific performance of contract, if there
is no contract whether expressed or implied there will be no specific
performance.

A Court provides an order of specific performance of contract in some

special and specific circumstances, where the general compensation for
a breach of contract is not enough or where such compensation is not
adequate to serve the purpose of the contract.
The term “specific performance” referred to the literal performance of
one’s obligation under a contract. it cannot be a new obligation.
In order to get an order of specific performance, the plaintiff must come
with clean hands and he must be ready to perform his part of the contract

à Nature of Specific Performance:

The Specific Relief Act 1877 is not an exhaustive code. It deals with
those specific relief which fall within the domain of court of equity. The
relief is ordinary available in a civil court. The defaulting party is
compelled to do or to omit every act which he has undertaken to do or to
omit. The specific relief is adjective law.

à Scope and object of specific performance:

The object is to specify the cases in which specific performance is
enforceable and the non-performance of the act or payment of money
under a contract. Where the plaintiff is not claiming the performance of a
specific act or the delivery of particular articles or of particular things but
is merely, claiming money payable to him under a contract, the suit can
in no sense be treated as a suit for the specific performance. The court
always drew a distinction between the essential and non-essential terms
of a contract and allowed incapacity to perform its non- essential terms
to be made the subject of compensation.
The scope is look into the conduct of the plaintiff and this is done in the
court’s discretionary nature of equity. Before an equity court will compel
specific performance, however, the contract must be one which can be
specifically performed.

à Specific relief how given:

Under Section 5 of The Specific Relief Act, 1877 discusses various

remedies that can be granted in specific cases. These remedies can be
provided in five ways:

1. Taking Possession of Certain Property and Delivering to a

Claimant:
This remedy allows a claimant to regain possession of property that
they have been wrongfully deprived of.
Under Sections 8 & 9 for immovable property and Sections 10 & 11 for
movable property, the possession of property can be restored.
Example: If someone is evicted from their house without legal
justification, they may file for recovery of possession of the property
under the law.

In the case of K.K. Verma v. Union of India (1954) ,The court held that
possession of immovable property should be restored to the lawful
owner even if the dispossessor had a stronger title.

2. Compel to do obligatory act:If one party refuses to perform an

agreed contractual obligation, the court can compel them to do so.

This remedy is given when a party is ordered to perform a specific action

as per the contract. It ensures the enforcement of a contract. Sections
12 and 55 reflect the specifics of this remedy.

Example: If a seller refuses to deliver goods that were agreed upon in a

contract, the court may order the seller to deliver the goods as per the
terms of the contract.

3. Injunction( Probiting a party from doing certain act):

When a party is about to perform an illegal act that could harm another,
the court may issue an injunction to prevent it.
This remedy involves stopping a party from committing a specific act.
Sections 52-57 cover injunctions, and Section 6 deals with preventive
remedies.

Example: If a person is constructing a building on someone else's land

without permission, the court may issue an injunction to stop the
construction.

In the case of Abdul Gani vs. Bangladesh Jute Mills (2018, DLR 136)
The court issued an injunction against the defendant to prevent the
construction of a building that violated zoning regulations.

4. Determination and Declaration of Rights of Property:

If there is a dispute over who owns a property or the rights of a person
over a property, the court can issue a declaratory judgment to resolve
the ambiguity.
Under Section 42, the court can declare a person's legal rights or
ownership of property, which helps clarify disputes over rights or
property ownership.
Example: If a person claims ownership of a disputed property, the court
can issue a declaration confirming the rightful owner based on legal
principles.

5. Appointment of a Receiver: When a property is in dispute or at risk

of being misused, the court may appoint a receiver to take possession
and manage it until the legal matter is resolved. Under Section 44, the
court can appoint a receiver to manage property during a legal dispute if
it deems necessary.

Example: In a case where two parties are fighting over property and one
party is using it illegally, the court may appoint a receiver to manage the
property to ensure it is not misused.

In the case of State of Orissa v. Pratap Chandra Nayak (1977) The

court appointed a receiver to safeguard the disputed property during
litigation.
The remedies provided under Section 5 of the Specific Relief Act are
designed to address specific legal wrongs and ensure that the aggrieved
party receives justice in the form of either possession, enforcement of a
contract, prevention of illegal acts, declarations of rights, or management
of disputed properties. The case references from Bangladesh illustrate
the practical application of these remedies.

à Where specific performance is allowed

According to Section 12 of specific performance act 1877. In the
following situation-specific performance can be provided by the court
with his discretion unless otherwise provided in Chapter 2 (section 21)

(a) Act part of a trust:

when the act agreed to be done is in the performance, wholly or
partly, of a trust.

(b) No standard to ascertain damage:

Where there is no standard to a certain actual damage for the non
performance of contract.
Illustration:
A agrees to sell a painting of Joynal Abedin to B and B agrees to buy the
same. Now, if A refuses to sell the painting to B, B can acquire an order
of specific performance of contract as there is no standard way to
ascertain the actual damage if the contract is not performed.

(c) No adequate relief:

If the situation is such that after the non-performance of contract no
pecuniary compensation would be adequate as relief then there will be
no order of specific performance.

Illustration
In Saru Meah Sowdagor Vs. Jahanara Begum 8 DLR 616 it is held that,
Presumption under section 12 is that, Breach of contract for sale of
immovable property can not be adequate relief by a money payment

(d) No pecuniary compensation:

Where there is a possibility that no pecuniary compensation will be
available after the breach of a contract.
Illustration
Unless or until the contrary is provided, the contract shall presume the
breach of contract to transfer of immovable property cannot be
adequately relieved by compensation in money.

à When specific performance of contract is not specifically

enforceable:

According to Section 21 of Specific Relief Act, 1877 the following

contract cannot be enforceable.
(a) Adequate relief:
When the compensation for non-performance is an adequate relief.
It means where money payment on the breach of a contract would be good
enough to satisfy the object of the court or the opposite party, then specific
performance shall not be accepted as a relief.

Illustration
A contracted B to sell 10 pieces of laptop for his office but later B refused to
take those laptops. Specific performance would not be enforceable as A
can be reimbursed by monetary compensation because it was a business
deal and his aim was to profit from those sales.

(b) Not enforceable by the court / Personal qualification:

Some contracts by nature are such that the court cannot force it by force
or if enforced court can not evaluate its execution, in such cases the
court shall not allow specific performance of contract.

Such as:
– contract with numerous details
– contract which depends on the personal qualification of a party.
Illustration
A contract for singing in a concert can not be enforceable by the court as it
depends on the personal qualification of the singer.

(c) Uncertainty of contract:

When the term of contract is such that it is not properly defined or
uncertain. such contract cannot be enforced

Illustration
A contracted with B to rent him a furnished house, later B refused to rent him
such furnished house. This contract is not enforceable due to its vague term
of “furnished”, as no description was given to what kind of furniture would be
provided.

(d) Revocable contract:

Where a contract by its nature is revocable then that contract is not
enforceable by law.
Illustration
A, D and C contracted to partners of an IT firm but the contract did not include
the duration of the partnership. therefore it is revocable by its nature and
cannot be enforced.

(e) Ultra vires act by trustees:

When the contract is made in excess of the power of a trustee or in breach
of their trust that contract shall not be specifically enforceable.
Illustration
A guarantor/creator of a trust entrusted his trust property to rent or lease and
share the money to the beneficiary but the trustee contracted to sell the
property violating the trust condition. That sell contract shall not be
enforceable.
(f) Ultra vires act by director/ promoters:
When a Director or Promoter of a company contracts in the access of
his/her power of that is given by the article of association or memorandum
of association or by any law that contract cannot be specifically performed.
Illustration
A company registered as an IT company contracted Care Hospital to sell
mask, this contract cannot be enforceable.

(g) Duration of execution:

Where there is a contract of which performance requires continuous duty
extending over a longer period than three years from its date
Illustration
A contracted D to sell a car, along with the condition that he will provide all
parts and service for that car for the next 10 years.
(h) Ceased to exist:
Where both of the parties of a contract believe that the material part of the
contract is in existence but in reality, it ceased to exist before the
agreement of the contract, in such a situation that contract cannot be
specifically performed.
Illustration
A contracted B to provide B 20 tons of Apple, both believing that A’s ship
is on its way from the UK, after their agreements they came to know that
A’s ship sunk 2 hours prior to the agreement to sell apple to B, their
contract this contract is not enforceable.