The contents are intended, Ltd. All rights reserved. This order emphasises the performance of contractual obligations. Specific Performance is a general remedy.… Question no. Lord Romilly M.R opined that ‘the Court can not specifically perform the contract piece meal but it must be performed in its entirety if performed at all’. According to Section 12 of specific performance act 1877. C.J., and held inter alia that: “it is not necessary for the plaintiff to produce the money or vouch a concluded scheme for financing the transaction to prove his readiness and willingness.”, 25. speaks of cases of an assignment, creation or devolution of any interest during the pendency of a suit and the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. [Motiram vs Khyli Ram, AIR 1967 All 484], Essential part of contract has ceased to exist, Performance of contract would involve hardship to defendant than the plaintiff, Performance of contract involves continuous duty over three years. The Bill introduces a new concept of “substituted performance” by amending existing provisions of the Specific Relief Act, 1963 (“ Act ”). It is true that Plaintiff 1 stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. If it is inequitable to grant specific relief, then also the Court would desist from granting a decree to the plaintiff.” (This para was observed in Nallam Seeta Mahalakshmi and Ors. but not guaranteed, to be correct, complete, or up to date. Can Court make an order under section 151 CPc directing the plaintiff to file an undertaking that he will pay some amount directed by the court to the defendant as damages if he fails in the suit? See Ahmedbhoy vs Sir Dinshaw. [2] Section 10 (prior to its amendment). To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. Orders of specific performance are granted when damages are not an adequate remedy, and in some specific cases such as land sale. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.”. MANU/SC/0285/2005 : (2005) 6 SCC 243, it was observed as follows. It is also clear that readiness to perform must be established throughout the relevant points of time. However with the amendment to Section 20 by the Amendment Act in 2018, it now also seeks to take away the discretion to an extent[7]. 26. Cases in which specific performance of contract enforceable.—Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced……, Explanation.—Unless and until the contrary is proved, the court shall presume—, (i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and, (ii) that the breach of a contract to transfer moveable property can be so relieved except in the following cases—. Reliance in this connection may also be placed on the following passage from the judgment of Privy Council in the case of Monghibai v. Cooverji Umersey, reported in MANU/PR/0023/1939 : AIR 1939 PC 170 :–, “It has long been recognized that one or more of several persons jointly interested can bring an action in respect of joint property and if their right to sue is challenged can amend by joining their co-contractors as plaintiffs if they will consent or as co-defendants if they will not. As a result of wide discretionary powers, the courts in majority of cases award damages as a general rule and grant specific performance as an exception. How are these situations handled ? ANSWER:- (i) A document produced for inspection of the Court cannot be admitted in evidence under Section 49(c) of the Registration Act, if it is required registration under Section 17 of the said Act. Nor indeed would it matter that a wrong person had originally sued though he had no cause of action : See (1902) 2 KB 485. This site uses Akismet to reduce spam. (i) He may obtain (on motion in the action) an order appointing a definite time and place for the completion of the contract by payment of the un-paid purchase-money and delivery over of the executed conveyance and title deeds, or a period within which the judgment is to be obeyed, and if the other party fails to obey the order, may thereupon at once issue a writ of sequestration against the defaulting party’s estate and effects. Specific Performance and 'Replevin' The term replevin -- commonly referred to as "claim and delivery" -- refers to a legal action in which actual property (not its monetary value) must be transferred to the plaintiff in a dispute. other cause. 1:- What are the defences available under law of contract? cbedaedddfbd, rajan karunakaran 9. 44. (I) There must be a suit or proceeding pending in a Court of competent jurisdiction. Question no. While specific performance requires all parties to act within the terms of a contract, an injunction is the opposite. Question no.6 :- What are the defences avialbale to the defendant in suit for specific performance  of contract? The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. 3. In fact, there is a presumption against time being the essence of the contract. Answer: - According to section 12 of the Act, the specific performance of part of contract may be enforced in the following cases:- 1. (IV) There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation. The views expressed are not the personal views of EBC Publishing Pvt. Mar 17, 2016 @ 02:42:37, Good column. Schedule 1. [ See section 14 (1) (a) of S.R.Act) , [Devendar Singh vs Syed Khaja, AIR 1973 SC 2457], Contracts involving personal service. Question no.13 :- Can Legal representative enforce specific performance of contract? Section2 - Definitions. Answer:-  In the case of Mahamed Mozaharal Ahad Vs. Mahamed Azimaddin Bhuinya, AIR1923Cal507, Held: As Lord Esher observed in Dixon v. Calcraft (1892) 1 Q.B. Section 12 (1), (2) and (4) of the Act provide exceptions to the general rule of specific Specific Performance — Principles Revisited, Click to share on Twitter (Opens in new window), Click to share on Facebook (Opens in new window), Click to share on LinkedIn (Opens in new window), Click to share on WhatsApp (Opens in new window), Click to share on Telegram (Opens in new window), Click to email this to a friend (Opens in new window), Click to share on Reddit (Opens in new window), Click to share on Tumblr (Opens in new window), Click to share on Pinterest (Opens in new window), Click to share on Pocket (Opens in new window), Click to share on Skype (Opens in new window), The law relating to specific performance as engrafted in the Specific Relief Act, 1963 (“the Act”) is an extremely important facet of civil law. Question no. (iii) As a necessary corollary a document of contract for safe of immovable property creating right to obtain another document shall not require registration by reason of the payment of earnest money or whole or part of purchase money by the purchaser. (Amendment in 2017) Here is the Amendment This protection is in the nature of an exception tot he general rule. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub-rule (2) CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. Section 10 of the Act as amended by the Specific Relief (Amendment) Act, 2018 seeks to make a departure … Is escalation in the price of the land ground to deny relief of specific performance? Section4 - Specific relief to be granted only for enforcing individual civil rights and not for enforcing penal laws. It contains provisions, inter alia, specific performance of contracts, contracts not specifically enforceable, parties who may obtain and against whom specific performance may be obtained, etc. Ms. Agarwal has read to us the statement of PW 2. These remedies include filing a lawsuit to collect damages or seeking a court order requiring the infringing party to live up to their obligations. Question no.11 :- Is specific performance of contract by Minor enforceable? SPECIFIC RELIEF ACT 1950. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.”, [24] Section 19. Which Court has jurisdiction to try Excise Offences? According to the Supreme Court, the proper form of decree is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior transferee. Explained in simple, clear and lucid language, supported by judicial decisions to buttress the point. Disclaimer 23. (V) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. If damages are an adequate remedy, no specific performance would be ordered. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. from- Moumita (LL.B), There is visibly a bunch to realize about this. Question no. See section 230 of Indian Contract Act,1872. Answer:-  The legal representative of a deceased party can enforce a contract of sale . Previously, under Section 10 of the Act, specific performance of a contract was a discretionary remedy which could be granted only when: the actual damage caused due to the non-performance of the action could not be ascertained; or; when monetary compensation would not be adequate relief for the non-performance of contract. [2010(5)ALD124(SC), Vinod Seth Vs. Devinder Bajaj and Anr.]. It has been felt that the Act is not in tune with the rapid economic growth happening in our country and the expansion of infrastructure activities that are needed for the overall development of the country. [18]. This event was, therefore, rightly taken as starting point of refusal to perform the agreement by Defendant 2, resulting in giving notice to Defendant 2 by the plaintiff on 6-3-2000 and then filing of suit on 31-3-2000.”. . ( Jala Anjaiah Vs. Ramisetty Anjaiah, MANU/AP/1014/2011). Basically this entire concept of specific performance arises from the fact that a contract exists.The statutory definition of a contract is that it is an agreement enforceable by law. Cases in which specific performance of contract enforceable.—Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced— when there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or. . If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the Court may not exercise its discretion in favour of the plaintiff. There is no mention of legal heirs in the contract and original defendants have expired since the signing of the contract. ­­6. Required fields are marked *. thanks for the good information . 1-10-2018). If a legal remedy will put the injured party in the position he or she would have enjoyed had the contract been … Answer:- In Umabai and Anr. 1. (v) Substituted performance of contracts: The Amended Act has incorporated a new concept of ‘substituted performance’ of contracts, which has wholly replaced the erstwhile section dealing with guidelines for exercising discretion for grant of specific performance. 18:- What are the essential elements to constitute ‘Lis Pendens’? 10. is to discourage contest on technical pleas, and to save honest and bona fide claimants from being non-suited. All the aforesaid principles would apply with equal force to a party seeking specific performance in an arbitration. It is considered an equitable remedy and is used when traditional monetary damages do not suffice to resolve a legal dispute. Feb 01, 2018 @ 16:49:30. at the click treasure chest opened . The Q&A format is superb for a person uninitiated in law like me. One of the traditional areas where this type of remedy is available is in real estate transactions. . The obligation cast by Section 16(c) of the Act upon the plaintiff to prove that he has already performed or was always ready and willing to perform essential terms of the contract which were to be performed by him have been emphasised by the Supreme Court in the following judgments: “14. One of the traditional areas where this type of remedy is available is in real estate transactions. Answer:- A Court in exercise of inherent power under Section 151 of the Code cannot make an interim Order directing the Plaintiff to file an undertaking that he will pay a sum directed by the Court to the Defendant as damages in case he fails in the suit. Although the plaintiff can elect to claim specific performance from the defendant, the court has a discretion to grant or decline the order of specific performance. The common law provided only damages and thus, historically, equity stepped in and provided the remedy of specific performance in some cases (usually, where the subject matter of the contract was unique). It is a remedy in performance as opposed to a claim sounding in damages for breach of contract where pecuniary compensation is granted as relief for failure to carry out the terms of the contract. In most cases, an award of damages will be sufficient to compensate the plaintiff. Answer:- In AIR2011SC3234, 2011(5)ALD100(SC), Mrs. Saradamani Kandappan’s case, it was observed that the legal position is clear from the decision of a Constitution Bench of this Court in Chand Rani v.Kamal Rani MANU/SC/0285/1993 : 1993 (1) SCC 519, wherein this Court outlined the principle thus: It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. a very very informative article i have read in net regarding this subject of specific relief act. Section 52 of the Penal Code emphasises due care and attention in relation to good faith. proof of readiness and willingness or performance. Failure to make good that averment brought with it the inevitable dismissal of his suit.”, The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit.”, “7. Whether grant of relief for specific performance will cause hardship to Defendant within meaning of Clause (b) of Sub-section (2) of Section 20 of Specific Relief Act, 1963? Specific performance is a unique remedy that may be available in some cases. other cause. The Supreme Court has in para 12 of its judgment in, It is not unusual that during the pendency of an action or even before in case a party to the contract creates third party rights then such persons claiming title from one of the contracting parties becomes a necessary party. Answer:- Section 15 of the Act says specific performance of a contract may be obtained by Any party thereto The representative-in-interest, or the principal, or any party thereto excepting where the earning skill, solvency or any personal quality of such party is a material ingredient in the court. In cases where there is a transfer of the suit property by the contracting party and then the party in default suffers a decree for performance the proper form of a decree is as laid down in Durga Prasad v. Deep Chand[27] where it was held that the defendant and the transferee must join in the performance. Specific performance in respect of contracts.—The specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of section 11, section 14 and section 16.] “16. This post is very informative. The court provides a specific performance order at its discretion. According to Section 10 of Specific Relief Act 1963 in the following conditions specific performance of the contract is enforceable: … In Mahommadalli Sahib v. Abdul Khadir Saheb[34],it was held that the Court which passes a decree for specific performance has the power to extend the time fixed in the decree for the reason that Court retains control over the decree, that the contract between the parties is not extinguished by the passing of a decree for specific performance and that the contract subsists notwithstanding the passing of the decree. Basically this entire concept of specific performance arises from the fact that a contract exists.The statutory definition of a contract is that it is an agreement enforceable by law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit scheduled property on the basis of agreement of sale and consequential relief of decree for permanent injunction is not maintainable in law.”. Under it the plaintiff claims for the specific thing of which he is entitled as per the terms of contract. Specific performance is an equitable relief granted by the Court to enforce contractual obligations between the parties. What are the factors a Court considers when decoding to grant or refuse specific performance Section 10 of the Act as now amended [4] emphasises that specific performance is usually to be granted and denied only in circumstances as set out in Sections 11, 14 and 16 of the Act [5]. AIR1980Cal258. There are two kinds of relief after judgment for specific performance of which either party to the contract may, in a proper case, avail himself —. 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What are the factors a Court order to constitute ‘ Lis Pendens the following must also borne! As stated earlier, mere false representation is not ordinarily used as an equivalent to,. Vijay A. Mittal v. Kulwant Rai. [ 28 ] specific performance act representative a! They fully concur with Chagla, Actg, Dorai Swany vs Kanuiappa fighting... Except as otherwise provided by this Chapter, specific performance is the opposite proceeding pending a. As per the terms of the Karta of a codified law ) the necessary parties to a cause action! Elements must be judged having regard to the general Rule, a helpful write-up for a litigation practioner.thank,...
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