Specific PerformanceFrequently Asked Questions on Specific Performance
"The law of specific relief is in its essence, a part of the law of procedure, for, specific relief is a form of judicial redress. It is called `specific' because under its procedure, the suitor gets his relief in specie i.e. the very thing which the other party was bound to perform or to forbear."History and Object of `Specific Relief Act' A mature legal system endeavours to provide not merely a remedy for every right infringed, but also an adequate remedy. It was in this process of a search for effective remedial action that Specific Relief emanated from the Equity Courts in England. The principles built up by successive Chancellors of England in this branch of law have been borrowed by the Indian Courts and have served to enrich the Indian Law. This fertilisation of Indian Law by the Equity Jurisprudence of England produced wider course of the Specific Relief Act of 1877. It was modelled on the draft New York Civil Code of 1862 and embodied in it the relevant doctrines evolved by the Courts of Equity in England. The Act of 1877 was not exhaustive. The jurisdiction of Courts in India to grant specific performance of contracts, for instance, existed independently of the Specific Relief Act. In localities to which that Act had no application, cases were governed by the ordinary rules of justice, equity and good conscience. For decades this Act was subjected to judicial interpretations which revealed many deficiencies and lacunae. Accumulated mass of case-law required a thorough overhaul of the provisions of the Act. The Law Commission appointed by the President of India after the advent of the new Constitution addressed itself to this task at its very first meeting. The recommendations of the Commission were embodied in its Ninth Report which was forwarded to the Government of India on 19th July, 1958. On the recommendations of the Law Commission a Bill was introduced in the Parliament on 23rd December, 1960 which lapsed on its dissolution. Again in 1962 the Specific Relief Bill, 1962 was introduced in the Parliament. Object - Specific Relief Act has been enacted to define and amend the law relating to certain kinds of specific relief. It refers only to the specific reliefs obtainable in civil courts. Specific Relief is a kind of procedural. law In a way it is a supplement to the Code of Civil Procedure. Principles upon which the Specific relief is granted - The Specific Relief Act is based on the rules and practice of the English Law. In England the equitable jurisdiction grew up because of the deficiency of Common Law. The Courts of Equity, in England, exercised their equitable jurisdiction when there was no relief at Common Law or the relief granted by the Common Law Courts was inadequate. Where pecuniary compensation was no adequate relief for the non-performance of the contract, the Court granted specific performance. In India too, the same principle is being followed while granting specific relief. But it should be noted that the Specific Relief Act refers to the specific reliefs obtainable in Civil Courts only and does not provide for reliefs obtainable in revenue or Criminal Courts. Thus the Hon'ble Supreme Court has held that Specific Relief Act 1963 does not consolidate the whole law on the subject. Although a matter on which the Act defines the law it might generally be exhaustive, the Act as a whole cannot be considered as exhaustive of the whole branch of the law of specific performance. Again, it should be noted that the granting of specific performance is a discretionary remedy. The Court will refuse to grant specific performance where pecuniary compensation is an adequate relief. Modes of Specific Relief - The following modes of specific relief are provided under Specific Relief Act -
(i) By recovering possession of property. (sections 5 to 8)
(ii) By compelling a party to do the very act which he is under any obligation to do, i.e. Specific performance of contracts. (sections 9 to 14)
(iii) By rectifying the instrument. (section 26)
(iv) Recission of contracts. (sections 27 to 30)
(v) Cancellation of instruments. (sections 31 to 33)
(vi) By declaring the rights of the parties otherwise than by an award of compensation, i.e. Declaratory decrees. (sections 34-35)
(vii) By granting injunction to prevent a party from doing that which he is under an obligation not to do. (sections 36 to 42)
(viii) By granting damages in lieu or in addition to injunction. (section 40)
"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."In a case decided by the Hon'ble Andhra Pradesh High Court, also, it has been held that the Specific Relief Act has been enacted to define and amend the law relating to certain kinds of specific reliefs. It refers only to the specific reliefs obtainable in Civil Courts but it does not provide for reliefs obtainable in revenue or Criminal Courts. Law of Specific Relief is a kind of procedural law. In a way, it is a supplement to the Code of Civil Procedure. The Act is based on the rules and the practice of the English law relating to the doctrine of specific performance. But it should be noted that the mere fact that the wrong complained of amounts to crime will not be a bar to specific relief if the relief claimed is with regard to the civil right. As such the fact that libel is a crime does not prevent an injured person from seeking injunction under Specific Relief Act against the publication of a libelous statement against him. In other words the enforcement of a penal law should not be the sole object of the specific relief. And where an enforcement of a penal law is merely ancillary or incidental to the grant of specific relief, the specific relief will be granted under Specific Relief Act.
Q. 3 According to Section 6 of Specific Relief Act 1963, if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may by suit recover possession thereof, notwithstanding any other title that may be set up in such suit. Discuss this statement critically with the help of decided cases.
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law (i.e. illegal), he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No such suit for the recovery of possession of immovable property under Section 6 of the Specific Relief Act shall be brought :
(i) after the expiry of six months from the date of dispossession; or
(ii) against the Government.Any order or decree passed under Section 6 of the Specific Relief Act shall be final and no appeal shall lie from any such order or decree nor shall any review of any such decree or order be allowed. Nothing in Section 6 of the Specific Relief Act shall bar any person from suing to establish his title to such property and to recover possession thereof." The object of Section 6 of the Specific Relief Act is to discourage forcible dispossession on the principle that disputed rights are to be decided by due process of law and no one should be allowed to take into his own hands, however good his title may be. In Smt. Koushalya @ Shakuntla Devi v. Padmanav Padhee, AIR 1987 Orissa 28 it was observed "The object of Section 6 of the Act is to discourage persons taking law in their own hands and is based and founded on public policy. It is a summary remedy available to person in possession of immovable property when he is dispossessed otherwise than in due course of law. A suit under Section 6 of Act is not maintainable against the State and after the expiry of period of six months from date of dispossession. It does not operate as a bar to the institution of suit for recovery of possession on the basis of title." In M.C. Chockalingam and Others v. Monicka Vasagam, 1974 (II) SCJ 30 Supreme Court observed that all that Section 6 of Act provides is that a person even if he is a landlord, cannot take the law into his own hands and forcibly evict a tenant after the expiry of the lease. Section 6 frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is "lawful possession."
Q. 5 X filed suit for injunction restraining defendant from interfering with his possession over property in suit of which the plaintiff claims himself to be the owner. He also asserted his possession over it. However he did not allege that the defendant dispossessed him from the property in suit. Would the plaintiff be entitled to the protection of Section 6 of Specific Relief Act ?
(1) If any person is dispossessed without his consent, of immovable property, otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other that may be set up in such suit.
(2) No suit under this Section shall be brought :
(a) after the expiry of six months from date of dispossession.
(c) Nothing in this Section shall bar any person from suing to establish his title to such property and to recover possession thereof.So Section 6 of Act enables a person to regain the possession of an immovable property of which he has been dispossessed without his consent or otherwise than in due course of law. In a suit for possession under Section 6 of Act, the question of title can neither be raised nor decided, what is required to be established is the possession within six months prior to filing of the suit. In the present case it is not the case of plaintiff that he has been dispossessed by the defendant. The case of plaintiff is that he is in possession of suit property and defendant be restrained from interfering with his possession. Thus necessary condition for invoking the provision of Section 6 of Act i.e. the plaintiff has been dispossessed from suit property without his consent within a period of six months, is not fulfilled. Therefore plaintiff can not seek the protection of Section 6 of the Act.
A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908.Explanation 1. - A trustee may sue under this section for the possession of movable proper to the beneficial interest in which the person for whom he is trustee is entitled. Explanation 2. - A special or temporary right to the present possession of movable property is sufficient to support a suit under this section. Section 7 of the Specific Relief Act provides for the recovery of movable property in specie. The essence of action lies in wrongful detention. The plaintiff must have a right to the immediate possession and if the plaintiff had never had a right to possession of the specific movable property, his suit is not competent. So it is also essential to prove, for recovery of specific movable property, that the plaintiff was deprived of his property in any of the following manner :
(i) by wrongfully taking it; or
(ii) by wrongly detaining it; and
(iii) by wrongly disposing it.
(a) when the thing claimed is held by the defendants as the agent or trustee of the plaintiff;
(b) when compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed;
(c) when it would be extremely difficult to ascertain the actual damage caused by its loss;
(d) when the possession of the thing claimed has been wrongfully transferred from the plaintiff.Explanation. - Unless and until the contrary is proved, the court shall, in respect of any article of movable property claimed under clause (b) or clause (c) of this section, presume -
(a) that compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed, or, as the case may be;
(b) that it would be extremely difficult to ascertain the actual damage caused by its loss.So in order to invoke Section 8 of the Act, following conditions must be fulfilled in addition to either of the four clauses (a) to (d) mentioned above:-
(i) That the defendant has the possession or control of a particular article claimed;
(ii) That such article is moveable property;
(iii) That the defendant is not the owner of such article and
(iv) That the plaintiff is entitled to its immediate possession.
"Except as otherwise provided in this chapter, the specific performance of any contract may, in the discretion of court, be enforced :
(a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.Explanation - Unless and until the contrary is proved the court shall presume :
(i) that the breach of a contract to transfer immovable property can not be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases :
(a) Where the property is not an ordinary article of commerce, is of special value or interest to the plaintiff, or consist of goods which are not easily obtainable in the market;
(b) Where the property is sold by the defendant as the agent or trustee of the plaintiff."Section 11 of Specific Relief Act then provides :
(1) Except as otherwise provided in this Act, specific performance of a contract may in discretion of court be enforced when the act agreed to be done is in the performance wholly or partly of a trust.
(2) A contract made by trustee in excess of his power or in breach of trust cannot be specifically enforced.Contracts not specifically enforceable. - On the other hand Section 14 of Act provides as to when contracts cannot be specifically enforced,
(i) A contract for the non-performance of which compensation is an adequate relief,
(ii) A contract which runs into such minute or numerous details or which is so dependent on personal qualification or volition of the parties or otherwise from its nature is such that the court cannot enforce specific performance of its material terms,
(iii) a contract which is in its nature determinable,
(iv) A contract the performance of which involves the performance of a continuous duty which the court cannot supervise.
(a) forms a considerable part of the whole, though admitting of compensation in money; or
(b) does not admit of compensation in money;he is not entitled to obtain a decree for specific performance, but the court may, at the suit of the other party, direct the party, in default to perform specifically so much of his part of the contract as he can perform, if the other party -
(i) In a case falling under clause (a) pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b) pays or has paid the consideration for the whole of the contract without any abetment; and
(ii) In either case, relinquishes all claims to the performance of the remaining part of the contract and all rights to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant;(4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part. In Sardar Singh v. Smt. Krishna Devi, AIR 1995 SC 491, it was observed that it is a well settled law that justice demands partial enforcement of contract instead of refusal of specific performance in its entirety; In A.L. Parthasarthi Mudaliar v. V.K. Chettiar, AIR 1965 Mad. 188 (189) it was held that two conditions are necessary before Section 12 can be applied :
(i) First the part which must be left unperformed bears only small proportion of the whole in value.
(ii) Secondly that it may be compensated in money by allowing an abatement of purchase money by calculating the difference between what was contracted to be done and what can actually be done or sold.
Q. 11. Can the following contracts be specifically enforced ? Give reasons for your answer.
(a) A contracts to sell certain lands to B, and also agrees to pay Rs. 1,000 to B in case of default. A subsequently refuses to perform the contract. B suses A for specific performance of the contract and pays Rs. 1000 into court.
(b) A and B contracted to sell certain property belonging to them and C to X. C was not contemplated as an inevitable party to the deal. Can the contract be specifically enforced against A and B despite C's refusal to join in it ?
(c) A and B contracted to sell two ancestral houses jointly held by them who were brothers to C for a consideration of Rs. 2,250.00, out of which Rs. 200/- were paid as earnest money. There was no separate oral agreement. Can a contract be specifically enforced either against A or against B alone ?
Q. 12. Decide the following :
(a) A agrees to sell a whole house belonging to him and his brother B to C. B's consent was not taken and subsequently B refuses to sell. C files a suit for specific performance of contract.
(b) A contracted in sell 50 acres of land to B. Later on it turns out that A is the owner of 49 acres of land and the remaining one acre belongs to C who refuses to sell. The one acres of land was discovered to be of C, is not necessary for the use or enjoyment of the 49 acres nor is to so importance for such use or enjoyment that its loss may not be made good in money. Can a specific performance of contract be granted ? If so, at whose instance ?
(a) if the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;
(b) Where the concurrence of other person is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other person is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance;
(c) Where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and where necessary, also a conveyance from the mortgagee;
(d) Where the vendor or lessor sues for specific performance of the contract and the suit is dismissed on the ground of his want of title or imperfect title, the defendant has a right to return of his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest, if any, of the vendor or lessor in the property which is subject matter of the contract.In Kalyan Lime Works Ltd. v. State of Bihar, 1954 SCR 958 Supreme Court held that Section 13 (a) of Specific Relief Act gives no power to court to reconstruct the contract but court can enforce the contract only to the extent that it is possible in changed circumstance and to the extent it is equitable to do so.
(a) a contract for the non-performance of which compensation is an adequate relief.
(b) a contract which runs into such minute or numerous details or which is so dependent on personal qualification or volition of parties or otherwise from its nature is such that the court cannot enforce specific performance of its material terms.
(c) a contract which is in its nature determinable.
(d) a contract the performance of which involves the performance of continuous duty which the court can not supervise.Sub-section (3) of Section 14 of Act however provides that notwithstanding anything contained in clause (a), (c) or (d) of Sub-section (1) , the court may enforce specific performance in following cases :
(a) Where the suit is for the enforcement of a Contract -
(i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once :
Provided that where only part of the loan has been advanced, the lender is willing to advance the remaining part of loan in terms of contract, or
(ii) to take up and pay for any debenture of company.
(b) Where the suit is for :
(i) the execution of formal deed of partnership, the parties having commenced to carry on business of partnership; or
(ii) the purchase of share of a partner in a firm.
(c) Where the suit is for the enforcement of a contract for the construction of any building or execution of any other work on land :
Provided that following conditions are fulfilled :
(i) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;
(ii) plaintiff has substantial interest in the performance of the contract and the interest is of such nature, that compensation in money for non-performance of contract is not an adequate relief; and
(iii) the defendant has in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.
"(1) the following contracts cannot be specifically enforced, namely :
(a) a contract for the non-performance of which compensation in money is an adequate relief.Further Sub-section (3) of the said Section lays down as under: "(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of Sub-section (1), the Court may enforce specific performance in the following cases :
(a) Where the suit is for the enforcement of a contract :
(i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once;
Provided that where only a part of the loan has been advanced, the lender is willing to advance the remaining part of the loan in terms of the contract."A contract to take a loan cannot be specifically enforced, because compensation for non-performance can afford adequate relief. The lender only says that he has sustained a pecuniary loss by his money remaining idle and by not getting such a good investment for it as the borrower contracted to give. This is a mere matter of calculation, and the amount of damages which the lender has sustained can be easily assessed. With contracts which result in a mere debt, or money claim, specific performance by payment of the money, is substantially the same merely the sum detained. The breach can be sufficiently compensated for by the award of damages. In the instant case, there is nothing to show that the money has already been advanced. Therefore, the mere agreement to execute mortgage will not be enforced. Similarly, a contract to lend money is not enforceable, because compensation can afford adequate relief. (ii) Section 14 of the Specific Relief Act, 1963 enumerates the contracts which cannot be specifically enforced. However, Sub-section (3) thereof provides certain exceptions. Sub- section (3) by its clause (c) provides as under : "Where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land, contract can be specifically enforced
Provided that the following conditions are fulfilled, namely:
(i) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;
(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and
(iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed."Thus, a contract for certain construction work is not specifically enforceable except in exceptional cases under the provisions of Section 14. When no exception has been made out, no order of injunction would be issued in support of specific performance of such contract. (iii) It has already been stated above that Section 14 of the Specific Relief Act enacts that a contract which is dependent on the personal qualifications or volition of the parties cannot be specifically enforced. Therefore, where personal skill is involved, such a contract cannot be specifically enforced. In the case in hand, the contract to translate the book into another language depends on the personal qualifications and skill of A. Therefore, such a contract cannot be specifically enforced.
Q. 16. Can following contracts be enforced specifically :
(i) A contract for sale of property which is under attachment by court's order.
(ii) Mere agreement to enter into contract.
(iii) Contract to marry.
(iv) `A' contracts to write book for `B'. He write the book but refuses to assign copy right and hand over the manuscript to who then sues A for specific performance.
Q. 17. (A) What are the principles on the basis of which specific performance of contract is decreed or refused ?
(B) State whether specific performance of following contracts can be obtained :
(i) a contract to marry
(ii) contract to lend money on a mortgage
(iii) contract by guardian to purchase immovable property on behalf of Minor.
(i) That the jurisdiction of decree of specific performance is discretionary.
(ii) That the court is not bound to grant such relief merely because it is lawful to do so.Sub-section (2) of Section 20 of Act contains the cases in which the court may properly exercise its discretion not to decree specific performance, which are as under :
(i) Where the terms of contract or the conduct of 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 voidable but gives the plaintiff an unfair advantage over the defendant.
In Lakshminarayan Reddiar v. Singarvali Naiker, AIR 1963 Mad. 26 it was held that to make a contract specifically enforceable, its terms must be fair and reasonable. If terms of the contract are not fair and reasonable then court may refuse to exercise discretion to grant a decree for specific performance.
(ii) Where the performance of the contract would involve some hardship on defendant which he did not fore see whereas its non-performance would involve no such hardship on the plaintiff.
(iii) Where the defendant entered into the contract under the circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.Explanation (1) says mere inadequacy of consideration or the mere fact that contract is onerous to defendant or improvident in nature shall not be deemed to constitute an unfair advantage within the meaning clause (i) or hardship within the meaning of clause. Explanation (2) says that the question whether the performance of contract would involve hardship on the defendant within the meaning of clause (ii) 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. Sub-section (3) of Section 20 says that 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 contract capable of specific performance. Section 20(4) further says that Court shall not refuse to any party specific performance of contract merely on the ground that the contract is not enforceable at the instance of the party. Ans. (B) (i) Section 14 (1)(b) of Specific Relief Act provide that performance of contract can not be specifically enforced when contract involves personal qualification or volition of parties. In view of above said provision, contract to marry which involve personal wish, desire or volition of parties, cannot be specifically enforced by court. (ii) Contract to take loan can not be specifically enforced, because compensation in money can adequately relieve its non-performance in view of Section 14 (1) (a). However, Sub-section (3) of Section 14 of Act says that notwithstanding anything contained in clause (a), (c) and (d) of Sub-section (1) , court may enforce specific performance of contract when there is suit for enforcement of contract to execute mortgage or furnish further security to secure repayment of loan which the borrower is not willing to repay at once, provided that only part of loan has been advanced and lender is willing to advance remaining part of loans in terms of contract. (iii) Section 20(4) of Specific Relief Act says that court shall not refuse to any party the specific performance of contract merely on the ground that contract is not enforceable at the instance of other party. Therefore a contract by a guardian to purchase immovable property on behalf of minor can be specifically enforced.
(i) Where by fraud, mistake of fact or misrepresentation, the written contract of which performance is sought is in its terms or effect different from what the parties agreed to, or does not contain all terms agreed to, between the parties on the basis of which the defendant entered into the contract;
(ii) Where the object of the parties was to produce a certain legal result which the contract as framed is not calculated to produce;
(iii) Where the parties have, subsequently to the execution of the contract, varied its terms.It should be noted that where there is a unilateral mistake in recording contract and the party knows it, then such party cannot take advantage of such mistake. A, B and C sign a writing by which they purport to contract each to enter into a bound to D for Rs. 1,000. In a suit by D to make A, B and C separately liable each to the extent of Rs. 1,000 they prove that the word "each" was inserted by mistake; that the intention was that they should give a joint bond for Rs. 1,000. D can obtain the performance sought only with the variation thus set up.
(1) When through a fraud or mutual mistake of parties a contract or other instrument in writing does not express their real intention then :
(a) either party or their representative may institute a suit to have the instrument rectified.
(b) plaintiff may in any suit in which any right arising under the instrument, is in issue, claim in his pleading that instrument may be rectified.
(c) defendant in any such suit as is referred to in clause (b) may in addition to any other defence open to him ask for rectification of instrument.Sub-section (2) then says court on being satisfied that any such instrument does not express real intention of parties, may in its discretion direct rectification of such instrument so to express real intention of parties and so far as this do not prejudice the rights acquired by third party in good faith. In Ladha Singh v. Munshi Ram, AIR 1937 Cal. 605 Calcutta High Court observed that "The principle on which the court acts in correcting instruments is that the parties are to be placed in the position as that in which they would have stood if no error had been committed."
(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.'Section 27(2) says `Notwithstanding anything contained in Sub-section (1) , the court may refuse to rescind the contract :
(a) Where plaintiff has expressly or impliedly ratified the contract or
(b) Where owing to change of circumstances which has taken place since the making of contract (not being due to any act of the defendant) the parties cannot be substantially restored to the position in which they stood when the contract was made or
(c) Where third parties have during the subsistence of the contract, acquired rights in good faith without notice and for value or
(d) Where only a part of contract is sought to be rescinded and such contract is not severable from the rest of the contract.So in case of `Rectification' the contract subsists and can be specifically enforced after the rectification for giving effect to the real intention of parties, on the other hand Rescission of contract implies cancellation of contract and parties thereto are thereby no longer bound under it.
Q. 21 A had agreed to sell the house to B for 15 lacs, Rs. 5 lacs are paid as advance. After one month further Rs. 5 lacs are paid and A put B in possession of house and balance amount of Rs. 5 lacs is to be paid on completion of paper work and registration of sale deed. A fails to keep his commitment. B files suit for specific performance of contract which is decreed. Court allows `B' period of 2 months to make the balance payment. However B fails to make payment of Rs. 5 lacs within the time allowed by court decree. A then applies for rescission of decree and contract ? Will he succeed ?
"Where in any suit decree for specific performance of contract for sale or lease of immovable property has been made and purchaser or lessee does not within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which decree is made, to have the contract rescinded and on such application the court may by order rescind the contract either so far as regards the party in default or altogether as the justice of the case may require."In Dr. J.S. Myick v. Dhanda Engi (P) Ltd., 1970 Punjab Law Reporter 565, it was held that only ground on which the court can make order rescinding the agreement of sale of immovable property under Section 28 of Specific Relief Act is that the purchaser had committed default in paying purchase money or other sum within the time allowed under the decree. Coming to case in hand, Decree of specific performance of contract of sale of house is made in favour of B by court, directing him to pay `A' the balance amount of Rs. 5 lacs within 2 months. On B's failure to pay said amount within the time allowed in court decree. A's application for rescission of contract, may be allowed by court in view of provision of Section 28 of Act.
"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 voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled."In M. Pillai v. Krishna Swamy Pillai, AIR 1960 Mad. 1 (Full Bench, it was held that relief as to cancellation of an instrument is founded upon administration of protective justice for fear that instrument may be vexatiously or injuriously used by defendant against plaintiff when evidence to impeach it may be lost or that it may throw cloud or suspicion over his title or interest. Section 32 of the Specific Relief Act which deals with the partial cancellation of an instrument, reads as under :
Where an instrument is evidence of different rights or different obligations the Court may, in a proper case, cancel it in part and allow it to stand for the residue.Section 33 of the Specific Relief Act deals with the powers of the Court to put a party to any term while cancelling an instrument. Section 33 of the Specific Relief Act provides as under :
(1) On adjudging the cancellation of an instrument, the Court may require the party to whom such relief is granted, to restore, so far as may be any benefit which he may have received from the other party and to make any compensation to him which justice may require.
(2) Where a defendant successfully resists any suit on the ground :
(a) that the instrument sought to be enforced against him in the suit is voidable, the Court may if the defendant has received any benefit under the instrument from the other party, require him to restore, so far as may be such benefit to that party or to make compensation for it;
(b) that the agreement sought to be enforced against him in the suit is void by reason of his not having been competent to contract under Section 1 of that Indian Contract Act, 1872, the Court may, if the defendant has received any benefit under the agreement from the other party, require him to restore, so far as may be, such benefit to that party, to the extent to which he or his estate has benefitted thereby.
Q. 23 (A) What is the ambit and extent of declaratory action under the Specific Relief Act ? Can declaratory action be granted outside the Act? (B) A is husband of W. A files a suit for declaration that a two years old boy allegedly born to defendant wife (W) was not his son. An objection is taken that the suit was premature as no maintenance and rights in A's estate were being claimed against him and that the interest of minor should not be prejudiced by deciding a question which will arise in future. Can a declaration be granted to A ? (C) A a worshipper files a suit for declaration that certain properties belonged to the deity. Here it is clear that the worshipper A is not claiming for himself any legal character or right in the property. The suit does not come within the purview of Sections 34 and 35 of Specific Relief Act. Is the worshipper entitled to maintain the declaratory suit ?
Provided that court shall not make any such declaration where plaintiff being able to seek further relief than mere declaration, omits to do so."In American Express Bank v. Calcutta Steel Co., 1993(2) Supreme Court Cases 199 (213), it was observed that `the grant or refusal of the relief of declaration and injunction under the provisions of Section 34 is discretionary. The plaintiff cannot claim the relief as of right. It has to be granted according to sound principles of law and ex debito justitiae.' So following proposition of law emerges regarding declaratory suit :
(i) Only those persons can file suit for declaration who are entitled to any legal character or to any right to any property. In State of Orissa v. Prathibha Prakash Bhavan, AIR 1995 Orissa 59, it was held that a complete stranger whose interest is in no way affected by another's legal character or who has no interest in another's property is not entitled to maintain suit under Section 34 of Act.
(ii) Matter of making declaration in the suit is completely depends upon the discretion of court. Court has to exercise its judicial discretion keeping in mind peculiar facts and circumstances of each case.
(iii) In a suit brought under this Section plaintiff has to show that he has some legal character or right to property which defendant is denying or threaten to deny. It is not necessary for him to show that he has a right to some consequential relief. However, proviso to Section 34 of Act makes it clear that court shall not make any such declaration where plaintiff being able to seek further relief in such suit omits to do so. It means when a plaintiff tries to seek declaration from court in respect of extract right to the exclusion of consequential relief which is also in issue, court may not grant him relief. Object of the provision is to make plaintiff bound to bring true and competent picture and circumstances in which he came in court. Court may grant declaration without requiring plaintiff to ask for further relief but not in that case when plaintiff could have sought consequential relief but does not do so.Section 35 of Act then provides "declaration made under this chapter is binding only on the parties to the suit, person claiming through them respectively and where any of the parties are trustees, on the person, for whom, if in existence at the date of declaration, such parties would be trustee. Ans. (B) Section 34 of the Specific Relief Act allows a declaratory suit not merely for establishing a right to any property but also for establishing any legal character where such character is either denied or is likely to be denied by defendant. Words "Legal Character" are wide enough to include the status of a person. Legitimacy of son is legal character. Suit for declaration as contemplated under Section 34 of Act can not be held not maintainable only because declaration as sought by plaintiff does not give immediate rights to plaintiff to any property. In Jagat Ram v. Mst. Basanti, AIR 1959 Punj. 581, it was held that suit by `A' for declaration that `B' was not his wife and `C' was not his son through him, is maintainable. It was also observed that it is desirable that suit of such type should be adjudicated upon without undue delay and certainly before relevant evidence disappears. In view of above discussion it is clear that present suit for declaration is maintainable under Section 34 of Specific Relief Act. Ans. (C) In case in hand, suit for declaration is brought by a worshipper that certain properties belonged to deity. Now question for determination is whether worshipper has locus standi to bring the suit in question in view of provisions of Section 34 of Specific Relief Act because worshipper is not claiming any title to `legal character' or to `right to property' for himself. However, worshipper shall be deemed to "trustee" claiming relief for deity. Therefore present suit is maintainable under Section 34 of Act. Moreover present suit is maintainable in view of provision of Section 9 of C.P.C. also because principal question involved in the suit is of Civil nature i.e. question of title of property. In Rama Raghava Reddy v. Seshu Reddy, AIR 1967 SC 436 Supreme Court held that Section 34 of Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such decree independently of requirement of the Section. It was held that suit of such nature if does not fall within preview of Section 34 of Specific Relief Act but certainly maintainable under Section 9 of C.P.C.
Q. 25 `A' files a suit against `B' for declaration that house (X) belongs to him. He also prays for delivery of possession of the house to him. Court passes a declaratory decree in favour of A and orders that possession of the house be delivered to A. Now `C' files a suit against `A' for delivery of house (X) to him on the ground that house belongs to him. `A' pleads in defence that the court has already made a declaration that house (X) belong to him. Will the Court accept this defence ?
"A declaration made under this chapter is binding only on the parties to the suit persons claiming through them respectively, and where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such party would be trustee." In Razia Begam v. Sahabzadi Anwar Begum and others, AIR 1958 SC 886 it was observed Declaratory decree declares the rights of decree holder qua the judgement debtor only.Therefore A's defence is not acceptable.
Q. 26 (A) What are the principles for issue of injunctions under the Specific Relief Act ? How many kinds of injunctions can be granted under the Act ? (B) A is wife of B. A files a suit for grant of injunction against her husband restraining from marrying a second wife. Is A's suit for injunction maintainable ? (C) A Municipal Committee issues a notice to B a house owner for removing certain encroachments from the Municipal land. B files a suit for injunction to restrain municipality from doing so. Can injunction be issue ?
(i) Temporary Injunctions : Section 37(1) of Act says Temporary injunctions are those which are granted for specific period or time or till further order of court. Such injunctions can be granted at any stage of suit. Provisions governing such injunctions are contained in Order 39 Rules 1 and 2 of Civil Procedure Code.
(ii) Perpetual Injunctions : Section 37(2) of Act says perpetual injunction are granted at the discretion of court, by decree upon hearing parties and merits of case and defendant is thereby perpetually enjoined from asserting right or commission of an act contrary to rights of the plaintiff.In Surya Nath Singh v. Khedu Singh, 1994 Supp. (3) Supreme Court Cases 561 it was observed "The grant of injunction is discretionary, the same must be exercised on settled principles of law to advance the cause of justice. It is subject to correction by appellate court." Chapter VIII of Act contains Sections 38 to 42 dealing with perpetual injunction. Section 38 provide as to when perpetual injunction is granted. Sub-section (1) lays down subject to provisions contained in or referred to by this chapter, perpetual injunction may be granted to plaintiff to prevent breach of obligation existing in his favour whether expressly or by implication. Sub-section (2) says when any such obligation arises from contract, the court shall be guided by provisions of Chapter II of Act. When defendant invades or threatens to invade any plaintiff's right to property court may grant perpetual injunction in following cases :
(a) Where defendant is trustee of property of plaintiff.
(b) Where there exist no standard to ascertain the damages caused or to be caused by such invasion.
(c) When invasion is such that compensation in money would not be an adequate relief.
(d) Where injunction is necessary to prevent the multiplicity of judicial proceedings.Section 39 of Act then provides for MANDATORY INJUNCTION and says " When to prevent the breach of obligation it is necessary to compel the performance of certain act, which court is able to enforce, the court may in its discretion grant an injunction to prevent the breach complained and also compel the performance of requisite acts." In Shamnugger Jute Factory Co. v. Ram Narain, ILR 14 Cal. 184, it was observed "The relief by way of Mandatory injunction is discretionary. The court will weigh the amount of substantial mischief done or threatened to plaintiff and compare it with that of defendant in the event of grant of injunction." Ans. (B) Injunction is a judicial process whereby a party is ordered (i) to refrain from doing or (ii) to do particular act or thing. Section 38 of Act says perpetual injunction may be granted to plaintiff to prevent the breach of obligation existing in his favour. That being the legal position, question for determination, in case in hand is whether a wife's suit seeking injunction restraining her husband from marrying second marriage is maintainable or not. This issue has to be decided by keeping in view two principles or Rules of law :
(i) Whether such suit is maintainable in view of Section 9 C.P.C.
(ii) Whether asking for such injunction is expressly refused or not in Section 41 of Specific Relief Act.Section 41 of Specific Relief Act provides that "An injunction cannot be granted :
(a) To restrain any person from prosecuting judicial proceedings pending at the institution of the suit in which the injunction is sought unless such restraint is necessary to prevent a multiplicity of proceedings.
(b) To restrain any person from instituting or prosecuting any proceeding in 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 criminal matter.
(e) To prevent the breach of 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 nuisance.
(g) To prevent a continuing breach in which the plaintiff has acquiesced.
(h) When equally efficious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust.
(i) When the conduct of plaintiff or his agent has been such as to disentitle him to assistance of court.
(j) When the plaintiff has no personal interest in the matter.So from the perusal of Section 41 of Act it is clear that wife's prayer for injunction restraining her husband to marry second time is not expressly prohibited and thus her suit is maintainable. Ans. (C) It can not be disputed that Municipal Committee has got the powers under Municipal Laws to issue notice to a person who has encroached upon the Municipal land for removal and if he fails to do so within the time given, the committee is empowered to take action in accordance with the law for removal of the same. But if a person comes to Civil Court with the plea that the construction are not on Municipal Land, a question of title arises which can only be decided by Civil Court so injunction restraining Municipal Committee from giving effect to notice by removing the construction can be granted by Court.
"Notwithstanding anything contained in clause (e) of Section 41, where contract comprises affirmative agreement to do a certain act coupled with a negative agreement, express or implied, not to do certain acts, the circumstance that the court is unable to compel specific performance of affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement;
Provided that the plaintiff has not failed to perform the contract so far as it is binding on him."So reading Sections 41(e) and 42 of Act together it is clear that where a contract involves affirmative covenant to do some act and negative covenant of abstain from doing something, then though court can not grant injunction restraining breach of affirmative contract in view of Section 41(e) on the ground that such contract can not be specifically enforced in view of Section 14 of Act, still court can grant injunction to perform negative covenant. In view of above discussion above, in case in hand X can be restrained by an injunction not to sing at any other theatre during the stipulated period.
Q. 28 Consider if any remedy under the Specific Relief Act is available to B :
(i) A denies that B is his son.
(ii) A agrees to lend B Rs. 20000 on interest but later refuses.
(iii) A a film actress agreed that she would render her exclusive services to B for a certain period and would not during that period render any services to another person. However in breach of agreement, she entered into an agreement to act for another film company.
(iv) A improperly uses trademark of B.
(v) Mr. A and Miss B enter into an agreement that they shall marry each other and none else during their life. A in breach of the agreement is going to marry another woman.
(vi) A illegal dispossesses B of a plot of land.
Provided that no court shall make any such declaration where plaintiff being able to seek further relief then a mere declaration of title, omits to do so."Expression "Legal Character" also implies to legitimacy status of a son. In Jagat Ram v. Mst. Basanti, AIR 1959 Punjab 581, it was held that a suit by A for declaration that B was not his wife and C was not her son through him, is a suit falling within provisions of Section 34 (Section 42 old) of Act and is maintainable. It was further observed that it is also desirable that disputes of this type should be adjudicated upon without undue delay and certainly before the relevant evidence disappears. In view of above discussion, A can seek a decree of declaration that B is not his son. (ii) According to Section 14 (1)(a) of Specific Relief Act, a contract for the non-performance of which compensation in money is an adequate relief, can not be specifically enforced. In the given problem the breach of contract to give money on loan can be adequately compensated in money and as such this contract can not be specifically enforced by the contract. (iii) Section 14 (1) (b) of Specific Relief Act says "a contract which runs in minute or numerous detail or which is so dependant on the personal qualification or volition of parties, can not be specifically enforced. Providing of services by Film actress is certainly dependent on personal qualification or volition of actress, therefore such contract which is based on personal qualification can not be specifically enforced. In Dr. S. Dutta v. University of Delhi, AIR 1958 SC 10 50 Supreme Court observed that contract of personal services cannot be specifically enforced. Clause (e) of Section 41 of Act says that an injunction cannot be granted to prevent the breach of contract, the performance of which would not be specifically enforced. However, Section 41(e) has to be read with Section 42 of Act which provides "Notwithstanding anything contained in clause (e) of Section 41, where contract comprises affirmative agreement to do a certain act coupled with a negative agreement expressed or implied, to do certain acts the circumstance that the court is unable to compel the specific performance of affirmative agreement shall not preclude it from granting injunction to perform negative agreement. Therefore in view of provision of Section 42 of Act B can sue for restraining A to act for another film company during the period of contract with B. (iv) Section 38 of the Specific Relief Act, 1963 inter alia provides : "When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely : where the invasion is such that compensation in money would not afford adequate relief." In M/s Vrajlal Manilal and Co. v. M/s N.S. Bidi Co., AIR 1987 Delhi 317. the Court granted temporary injunction in a suit for permanent injunction restraining the defendants from using a trade mark or label for marketing his `bidis' which was deceptively similar to the trademark or label used by the plaintiff who had an established business in `bidis', holding that the balance of convenience was in favour of the plaintiff who was likely to suffer irreparable harm if the defendants were not so restrained. In the case in hand, the word `improperly' means that the defendant (A) has used the plaintiff's trade mark on goods not belonging to the plaintiff. If B's use of trade mark is honest, he is entitled to an injunction restraining A from using B's trade mark. (v) Section 14 of the Specific Relief Act, 1963 inter alia provides that a contract which is dependant on the personal qualifications or volition of the parties cannot be specifically enforced. Such contracts depend upon the volition of the parties; consequently, they cannot be specifically enforced in view of the provisions of Section 14 (b) of the Act. (vi) B can file a suit for possession under Section 6 of the Specific Relief Act, 1963 within six months of his dispossession. In such a suit, the question of title is immaterial. If he fails to file the suit within the said period, he can file a suit for possession within 12 years of his dispossession, provided he has a title to the property or has perfected his title by adverse possession.
(1) subject to the other provisions contained in and referred to by this chapter, perpetual injunction may be granted to plaintiff to prevent the breach of obligation existing in his favour whether expressly or impliedly.
(2) Where any such obligation arises from contract, the court shall be guided by Rules and provisions of Chapter II of Act.
(3) When defendant invades or threaten to invade plaintiff's right to or enjoyment of property, court may grant perpetual injunction in following cases :
(a) Where defendant is trustee of property of plaintiff.
(b) Where there exist no standard for ascertaining damages caused or likely to be caused by such invasion.
(c) Where invasion is such that compensation in money would not be adequate relief.
(d) Where injunction is necessary to prevent the multiplicity of judicial proceedings.Section 39 of Act then provide for Mandatory Injunction and lays down as under :
"When to prevent the breach of obligation it is necessary to compel the performance of certain acts which court is able to enforce, the court may in its discretion grant an injunction to prevent the breach complained and also to compel the performance of requisite acts."