THE BIRD EYE VIEW OF SPECIFIC RELIEF ACT 1963

Act No. 47 of 1963

Enactment: 13 Dec 1963

Enforcement: 1 March 1964

Object: Define and Amend

PART II: SPECIFIC RELIEF ACT 1963

CHAPTER I: RECOVERING POSSESSION OF PROPERTY

5.Recovery of specific immovable property

1. Person entitled to the possession
2. Specific immovable property
3. Recover it
4. Manner provided by the Code of Civil Procedure, 1908.

6.Suit by person dispossessed of immovable property

(1) Person dispossessed immovable property without his consent otherwise than in due course of law recover possession thereof notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought-

1. After the expiry of six months from the date of dispossession; or
2. Against the Government.
3. No appeal
4. No review
5. Title suit not barred

7.Recovery of specific movable property

• Person entitled to the possession
• Specific movable property
• Recover it in the manner provided by the Code of Civil Procedure, 1908.

Explanation 1.-Trustee may sue for beneficiary.

Explanation 2.-A special or temporary right sufficient.

8.Liability of person in possession, not as owner to deliver to persons entitled to immediate possession

1. Defendant is Agent or Trustee.
2. Compensation not adequate relief.
3. Extremely difficult to ascertain actual damage.
4. Possession has been wrongfully obtained from plaintiff.

CHAPTER II: SPECIFIC PERFORMANCE OF CONTRACTS

9.Defenses respecting suits for relief based on contract

1. Defenses available under law relating to contracts
2. May be claimed in suit for specific performance

10.Cases in which specific performance of contract enforceable

• The specific performance of a contract shall be enforced by the court, subject to the following provisions –

11.Specific performance of contracts connected with trusts

(1)

1. Specific performance of contract
2. shall be enforced
3. when the act agreed to be done is in the performance
4. wholly or partly of a trust

(2)

1. Except Contract by Trustee in
2. Excess of powers of Trustee, or
3. Breach of Trust

12.Specific Performance of Part of Contract

(1) Court shall not direct specific performance of Part of Contract

Exceptions:

1. Lion’s share specifically enforceable and rest admit of compensation
2. Large Part admitting of compensation, or whole consideration paid and relinquishes all claims
3. Separate and Independent part

13.Rights of purchaser or lessee against person with no title or imperfect title

• (a) Feeding the estoppel
• (b) Compel concurrence
• (c) Redeem mortgage
• (d) Right to return of his deposit with Interest and Costs

14.Contracts not specifically enforceable

The following contracts cannot be specifically enforced –

1.  Party has obtained substituted performance of contract u/s 20;
2.  Performance involves continuous duty which the court cannot supervise;
3.  Contract is dependent on personal qualifications of the parties; and
4.  Contract is determinable in nature.

14A. Power of court to engage experts.

1. Without prejudice to CPC
2. Court considers necessary to get expert opinion
3. To assist it on any specific issue
4. Involved in the suit
5. Court may engage one or more experts
6. Direct to report on such issue
7. Secure attendance of the expert for providing evidence
8. Including production of documents on the issue.
9. Court may direct any person to give relevant information or document to the expert.
10. Expert opinion or report shall form part of the record of the suit.
11. Court may examine the expert personally in open court on any of the matters referred to him or mentioned in his opinion or report, or as to his opinion or report, or as to the manner in which he has made the inspection.
12. Expert shall be entitled to such fee, cost or expense as the court may fix.

 15. May obtain specific performance

The following may obtain specific performance of contract –

1. Any Party
2. Representative in Interest or Principal
3. Beneficiary
4. Reversioner in Possession
5. Reversioner in Remainder
6. New Company on Amalgamation

(fa) New Limited Liability Partnership on Amalgamation

(h) Company on Contract by Promoters – Contract warranted by terms of incorporation, ratified and notice to other party.

16.Personal bar to Relief

Specific performance of a contract cannot be enforced by one, who has –

(a) Obtained substituted performance of contract u/s 20; or

(b) Become Incapable of Performance

1. Violates any essential term
2. Acts in fraud
3. Wilful acts at variance or in subversion of contract.

(c) Fails to prove readiness and willingness.

Explanation –

(i) Where a contract involves the payment of money, actual tender of money is not essential unless directed by the Court.

(ii) Plaintiff must prove performance of, or readiness and willingness to perform, the
contract according to its true construction.

17.Contract to sell or let property by one who has no title, not specifically enforceable

Contract to sell or lease any property not specifically enforceable by a vendor or lessor, who –

(a) has no Title

(b) had a belief of Good Title but cannot at time fixed, transfer the title free from reasonable doubt.

18.Non-enforcement except with variation

Defendant can set up following variations:-

(a) Fraud , Mistake of fact, Misrepresentation, or Does not contain all the agreed terms

(b) Certain legal result – contract framed not calculated to produce

(c) Subsequent variation by Parties

19.Relief against parties and persons claiming under them by subsequent title

Specific performance of a contract may be enforced against –

(a) Either party

(b) Person claiming under him by Title, Except bona fide transferee for value, without Notice

(c) Person claiming under Title, prior and known, might have been displaced by the defendant

(ca) New Limited Liability Partnership on Amalgamation

(d) New Company on Amalgamation

(e) Company for Contract by Promoters – Contract warranted by terms of incorporation, ratified and notice to other party.

20.Substituted Performance of Contract

(1)

1. Subject to Contract
2. Where Contract is broken due to non-performance
3. Party suffering the breach
4. May obtain substituted performance
5. By third party or agency, and
6. Recover expenses and costs actually incurred from party committing the breach.

(2)

1. 30 Days Notice in writing
2. To Party in breach
3. Calling upon performance

(3) Once substituted performance obtained, no specific performance may be obtained.

(4) Suffering party may claim compensation.

20A. Special provisions for contract relating to infrastructure project.

1. No injunction shall be granted by a Court
2. In a suit involving a contract
3. Relating to an infrastructure project
4. Specified in the Schedule
5. Where granting injunction would cause impediment or delay in the progress or completion of such infrastructure project.

20B. Special Courts.

1. The State Government in consultation with the Chief Justice of the High Court
2. Designate one or more Civil Courts as Special Courts
3. By notification published in the Official Gazette,
4. Within the local limits of the area to exercise jurisdiction and to try suit under this Act in respect of contracts relating to infrastructure projects.

20C. Expeditious disposal of suits.

1. Suit filed under this Act
2. Shall be disposed
3. Within twelve months
4. From the date of service of summons to the defendant:
5. Provided the said period may be extended upto six months after recording reasons in writing by the court.

21.Compensation

1. In Addition to Specific Performance
2. Pleading must

22.Possession, Partition and Refund of Earnest money

1. In Addition to Specific Performance
2. Without prejudice to Section 21

23.Liquidation of damages not a bar to Specific Performance

24.Bar of suit for Compensation for breach after dismissal of suit for Specific Performance

Read with O.2 R.2 C.P.C.

25.Application of Chapter

1. Arbitration and Conciliation Act, 1996
2. Direction in will or codicil to execute particular settlement

CHAPTER III: RECTIFICATION OF INSTRUMENTS

26.Rectification of Instruments

1. Fraud or Mutual Mistake
2. By party or representative in interest
3. Also in addition to defence in suit for Specific Performance

CHAPTER IV: RECESSION OF CONTRACTS

27.When rescission may be adjudged or refused

1. Contract voidable or terminable by Plaintiff
2. Contract unlawful for causes not apparent on its face and defendant is more to blame

Exception:

1. Ratification
2. Cannot be restored
3. Interest of bona fide Third Party
4. Part only

28.Rescission where the specific performance decreed

1. Purchaser or Lessee does not
2. Pay Purchase Money or Other Sum
3. Within Period allowed by Decree or
4. Such further period as court may allow

29.Alternative prayer for rescission in suit for specific performance

30.Court may require parties rescinding to do equity

1. Restoration of benefit on Rescission
2. Read with Section 64, 65 of Contract Act

CHAPTER V: CANCELLATION OF INSTRUMENTS

31.When cancellation may be ordered

1. Instrument is Void or Voidable
2. If left outstanding may cause serious injury

32.What instruments may be partially cancelled

1. Instrument is evidence of different rights or different obligations

33.Power to require benefit to be restored or compensation to be made

1. When Instrument is cancelled or
2. Successfully resisted as being void or voidable
3. Section 33(2)(b) apply to Minor also

CHAPTER VI: DECLARATORY DECREE

34.Discretion of court as to declaration of status or right

1. Any person entitled to any legal character, or any right as to any property,
2. Any other person denies or interested to deny his title or right,
3. Person entitled may seek Declaration
4. Plaintiff need not ask for any further relief
5. Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so

35.Effect of Declaration

1. Judgment in Personam

PART III: PREVENTIVE RELIEF

CHAPTER VII: INJUNCTIONS GENERALLY

 36.Preventive relief how granted

1. Granted at discretion of Court
2. By Injunction
3. Temporary or Perpetual

37.Temporary and perpetual injunctions

1. Temporary Injunction
2. Continue until a Specified Time or
3. Until Further Order of Court
4. Granted at any stage of suit
5. Regulated by C.P.C. (Order 39)
6. Perpetual Injunction
7. Granted by Decree at hearing
8. Upon Merits of Suit
9. Defendant Perpetually enjoined from
   1. Assertion of Right
   2. Commission of Act
10. Contrary to Right of Plaintiff

CHAPTER VIII: PERPETUAL INJUNCTIONS

 38.Perpetual injunction when granted

• To prevent breach of Obligation existing in Plaintiff’s favour
• Guided by Principles of Chapter II
• (a) Defendant is Trustee

(b) No standard for ascertaining Actual Damage

(c) Compensation not Adequate Relief

(d) Prevent Multiplicity of Judicial Proceedings

39.Mandatory injunctions

1. When to prevent the breach of an obligation and It is necessary to compel the performance of certain acts
2. Which the court is capable of enforcing
3. Court may grant an injunction to prevent the breach and also compel performance of the requisite acts

40.Damages in lieu of, or in addition to, injunction

1. Specific Pleading and relief
2. Dismissal of Injunction Suit bars suit for damages (read with O2 R2 CPC)

41.Injunction when refused

(a) Prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, except to prevent a multiplicity of proceedings;

(b) Instituting or prosecuting any proceeding in a Court not subordinate;

(c) Applying to any legislative body;

(d) Instituting or prosecuting any Criminal proceeding;

(e) Breach of a contract not specifically enforceable;

(f) Alleged Nuisance, act not reasonably clear;

(g) Acquiescence of continuing breach;

(h) Equally efficacious alternate relief except breach of Trust;

(ha) Impede or delay the progress or completion of any infrastructure project

(i) Plaintiff or agent’s conduct dis-entitle him;

(j) No personal interest in the matter

42.Injunction to perform negative agreement

1. Notwithstanding section 41(e) and Contract comprises an affirmative agreement coupled with a negative agreement
2. Injunction to perform the negative agreement alone permissible