SPECIFIC RELIEF ACT, 1963

Specific Relief Act is a window of reliefs. Remedies provided under this law are:  Recovery of possession, Suit for specific performance, Suit for injunction, Suit for declaration and Suit for injunction, Suit for declaration, recovery of possession and injunction and damages, suit for cancellation, Suit for rectification. These are some remedies parties can also seek apart from other remedies provided under any contract or law. This Act is a bridge between substantive civil law and procedural civil law.  Substantive civil only talks about right and duties but it didn’t specify mode of redressing the grievance and whereas procedural law tells about adjudication of civil rights with the aid of CPC and Civil rules of practice but it didn’t specify with what remedies they must be solved. But it is the Specific relief act talks about various remedies to resolve civil disputes and principles court shall apply in resolving those disputes with the aid of these remedies.  Therefore, Specific Relief Act is called window of reliefs. It must be noted that Specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.

 

S.2. Definitions: (a) “Obligation” includes every duty enforce by law.

(b) “Settlement” means an instrument (other than a will or codicil as defined by the Indian Succession Act, 1925) whereby the destination or devolution of successive interests movable or immovable property is disposed of or is agreed to be disposed of.

(d) “Trustee” includes every person holding property in trust.

(e) All other words and expressions used herein, but not defined, and defined in the Indian Contract Act, 1872, have the meanings respectively assigned to them in that Act.

S.3. Savings: Nothing in this Act shall be deemed. –

(a) To deprive any person of any right to relief, other than specific performance, which he may have under any contract.

(b) To affect the operation of the Indian Registration Act, 1908, on documents.

S.4.: It says Specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.

Recovery of Possession: It can be studied under two heads. They are: General remedy and summary remedy. Under General Remedy a person who is entitled to legal possession of property can in the event of dispossession, file a suit for recovery of its possession. The rules relating to General Remedy are governed by Code of Civil Procedure 1908 (S.5 &7). Under summary remedy (S.6 of the Act) a person who is in settled possession of immovable property is dispossessed though he is having or not having legal title to property, he can file a suit for recovery of its possession. However, such person shall file suit within six months from the date of dispossession. If such dispossession is caused by government this remedy can’t be invoked. There shall be no appeal from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. It must also be noted that invoking of this remedy is not from suing to establish his title to such property and to recover possession thereof. The philosophy behind this section is that law discourages forcible dispossession from immovable property even by owner and thereby prevent private people to take law into their hands.

Specific Performance (S.10): Conditions: There exists no standard to ascertain the actual damage caused by the non-performance of the act agreed to be done or That the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.

Explanation: If the breach is relating to transfer of immovable property court shall presume that compensation in money is not adequate relief and contra is the presumption in case of movable property. However if the movable 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. Further, if the property is held by the defendant as the agent or trustee of the plaintiff.

S.11 says that specific performance can be enforced when the act agreed to be done is wholly or partly is in the performance of a trust. An exception is that the contract must not be in excess of the power of a trustee.

S.12 says that if, in the discretion of the court, only a small part of a contract cannot be specifically performed and if such part can be alternatively compensated, the rest of the part can be specifically enforced.

Personal Bars to relief:  Sec. 16 refers to the personal bars to relief, namely:

(i) the person who is not entitled to recover compensation for breach of its contract,

(ii) who has become incapable for performing, or violates any essential term of the contract that on his art remains to be performed or acts in fraud of the contract, or willfully acts of variance with, or in subversion of, the relation intended to be established by the contract; or

(iii)  That the party who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms, the performance of which has been prevented or waived by the defendant.  Sec. 16 (c explanation, denotes that where the contract involved payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so ordered by the court.

Readiness and Willingness:  Regarding explanation (ii) of Cl.(c) of section 16, the position is settled that the plaintiff should not only aver but also to prove his continuous readiness and willingness to perform his part of contract at all material times, right from date of contract till the date  of decree/execution of sale deed.  Some courts are of the opinion that this should be specifically pleaded in the plaint.

S.20. Discretion as to decreeing specific performance:

(1) 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; but 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.

(2) The following are cases in which the court may property exercise discretion not to decree specific performance:-

(a) Where the terms of the contract or the conduct of the parties at 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 void able, 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 non-performance 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 void able, 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).

Explanation 2:-The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.

Suit for Rectification (S.26):Conditions: If through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956, applies) does not express their real intention, then- either party or his representative in interest may institute a suit to have the instrument rectified; or

Suit for Cancellation (S.31): Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument. if left outstanding may cause him serious injury, may sue to have it adjudged void or void able; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

Suit for Rescission(S.27): If any person interested in a contract may sue to have contract rescinded in any of the following cases namely:-

(a) Where the contract is voidable or terminable by the plaintiff,

(b) Where the contract is unlawful for causes not, apparent on its face and the defendant is more to blame than the plaintiff.

(2) Notwithstanding anything contained in subsection (1), the court may refuse to rescind the contract-

(a) Where the plaintiff has expressly or impliedly ratified the contract; or

(b) If owing to the change of circumstances which has taken place since the making of the contract (not being due to any act of the defendant himself), the parties cannot be substantially restored to the position in which they stood when the contract was made; or

(c) If third parties have, during the subsistence of the contract, acquired rights in good faith without notice and for value; or

(d) If only a part of the contract is sought to be rescinded and such part is not severable from the rest of the contract.

Suit for declaration(S.34):Conditions: 1) That the plaintiff is entitled to a legal character at the time of the suit or any right as to any property.

2) Defendant has denied or he is interested to denying that character or right of the plaintiff.

3) The plaintiff is not in a position to ask for relief consequential upon the declaration. IF these conditions are satisfied, the plaintiff need not ask for any further relief than mere declaration. But the court shall not make any such declaration if he, being able to seek further relief than a mere declaration of title, omits to do so. (For details see under heading further relief)

Injunction(S.38): Conditions: Injunction is granted to prevent the breach of obligation existing in favour of the plaintiff and against the defendant. The term obligation means a duty enforceable by law.

Additional conditions: 1) There  exists no standard to ascertain the actual damage caused, or likely to be caused, by the invasion;

2) If  the invasion is such that compensation in money would not be affordable relief; c) Injunction is necessary to prevent multiplicity of proceedings.S.41 says when Injunction shall not be granted.

S.41. Injunction when refused: An injunction cannot be granted. –

(a) To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restrain is necessary to prevent a multiplicity of proceedings;

(b) To restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;

(c) To restrain any person from applying to any legislative body.

(d) To restrain any person from instituting or prosecuting any proceeding in a criminal matter;

(e) To prevent the breach of a contract the performance of which would not be specifically enforced;

(f) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will  be a nuisance;

(g) To prevent a continuing breach in which the plaintiff has acquiesced;

(h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;

(j) When the plaintiff has a no personals interest in the matter. S.42: If the contract consists of positive agreement and negative agreement, merely because court enforce positive agreement it doesn’t bar the court to enforce the specific performance of negative agreement.  However, plaintiff has to perform his part of contract so far as it is binding on him.